author: Mr. Justice McLEAN

text:
    Nathaniel Hoyt and James Blandin, Administrators, &c., and the said James Blandin, William M. Hudson, and Josephine, his wife, heirs of Antoine Blandin, deceased, and Elisha M. Pease, Appellants, v. George S. Hammekin, and Adelaide Matilda, his wife.
    W e a title to land iii the' State„of Coahuila and Texas was obtained in 1833, by a -mother for, and in the name of her daughter, and, in 1836, the father of the daughter conveyed it aWay by a. deed executed in Louisiana, this deed was properly sot aside by the District Court of Texas.
    It was not executed either according to the laws of Louisiana, or those of Coahuila and Texas.

      Mr. Justice Curtis was necessarily absent when this case was considered and decided.

      This was an appeal from the District Court of the United States for the District of Texas.
    The facts are stated iii the opinion of the court.
    It-was argued by Mr. Allen, for the appellant, with whom was Mr. ■Hale, and by Mr. Hughes, for the appellee.
   Mr. Justice McLEAN

delivered the opinion of the court.

This is an appeal in Chancery, from the District Court of the United States for the District of Texas. , ,

The bill alleges, that the States of Coahuila and Texas, on the 23d of November, 1833, granted eleven leagues of land, on the River Navasota, in the department of Nacogdoches, and of the value of fifty thousand dollars, to Adelaide Matilda Mexia; that on the 10th of February, 1836, her father, Antonio Mexia, upon some supposed necessity of having the legal title vested in a eitizen of said State, and without consideration, sold and conveyed the land to John A. Merle, by authentic act before a notary public of Louisiana, and not according to- any law in Texas, or in the State of Coahuila and Texas; and that the said Merle, by a like authentic .act, declared that the said land \yas purchased by him with the funds of Antonio Blandin; that the said Antonio died intestate; that Nathaniel Hoyt and James Blandin have been appointed administrators of .his succession, and that Josephine Hudson and' James Blandin are his heirs at law; that the said Adelaide Matilda owns the same in her own .right, but that the administrators and heirs of Blandiri claim the .same by descent.

An amended bill represents, that Antonio Blandin, ancestor of defendants, before his death, in order to carry out the trust created by the sale to him, and to prevent the land from being subject to his debts, .and that the title.might be vested in a resident of Texas, he expecting to be absent, without consideration or consent of complainants, conveyed all his right and Ínteres! in the land to Elisha M. Pease; that by reason of this convey. anee, the land did not descend to the heirs of Blandin, but the title.remains in Pease, who holds the same for the benefit of the complainants; that he does not claim title for his own benefit, but for the benefit of those for whom the trust was created. And the complainants pray that Pease may be made a párty; and that the sale by Antonio Mexia be declared void, or that the heirs of Blandin may be held trustees, &c., and compelled to convey, &c.

The heirs of Blandin plead in bar to so much of the- bin as alleges the grant of the land to the said Adelaide Matilda, and a subsisting title in her, and seeks special or general relief. They allege that, in pursuance of a petition, bearing date the 27th of January, 1830, presented to the Governor of .the State of Coahuila and Texas, by, and in-behalf of one Pedro Varela, a grant by way of sale, in conformity with the 24th article of the colonization law of the 24th of March, 1825, was made to him, by the said Governor, of eleven leagues of land in the vacant lands of said State. That on the 29tb of March, 1832, said Varela, by notarial act, in the city of Mexico, sold and transferred said land to one' Charlotte Walker, wife of said Mexia, for the use of their daughter, the said Adelaide Matilda, then a minor, unmarried, and subject to the power of her father; in order that she might enjoy or alienate said land, as absolute proprietress bf the same; that by said act she .became bound to pay to-the government of said State, the value bf the land, according to the colonization law; that the sale and transfer were founded upon a .valuable consideration in money, paid by Mexia to Varela; that said act was executed by Charlotte, wife of Mexia, acting for her husband, and in his absence, by virtue of the power granted to her, according to the laws of ^Mexico, by Alexander Alvarez Guitian, second constitutional Alcade of the City of Mexico, on the 10th of March, 1832 ; and that Mexia thereby became entitled to all the benefits of said act, and was bound by the same.

That on the 23d of November, 1833, a survey having first been made, a title of possession of the land was made by the Commissioner, Vincente Aldret.o, to said Adelaide Matilda; and that, on' the 10th of February, 1836, said Adelaide Matilda remaining unmarried, and subject to Mexia, her father, he, by a notarial act, at the city of New Orleans, granted, sold, and transferred the land, with the consent and authorization bf his said.wife, to said John A. Merle,-then acting as trustee for Antonio Blandin, for the consideration of $7,306.25 then paid to said Mexia by Merle, out of the funds of Blandin, in his possession. Other parts of the bill"were denied in the plea.

The answer of Pease, admits, that some time in 1838, Antonio Blandin called upon him and stated, that he held the title to three eleven league gran ts-in Texas, one, as he believes, the grant in controversy ; that sáíd land hád been conveyed to him by the owners, in order that he, as a resident of Texas, might hold the same for their benefit, &c.

The other defendants admit the conveyances alleged in the bill, but do not admit the trust in their ancestor, and they allege as a reason for his conveyance to Pease,’ that he was embarrassed, and was apprehensive his creditors would subject the land to the payment of his debts. The land, they assert, was conveyed in trust to Pease, for the benefit of +he wife and children of Blandin;

A demurrer was filed to the amended bill, which was properly overruled by the District Court. The case must be examined here on its merits.

The purchase from Varela was made by Mrs. Mexia, for the benefit of her daughter Adelaide Matilda. It was a concession to be located upon the unappropriated lands of the State. After the location and survey were made, the title of possession issued to Adelaide Matilda.

The 59th law of Toro provides, when the husband shall be absent, and no present prospect of his return, or where there be danger by reason of delay, the Justice, with a knowledge of the cause, being legitimate, or necessary, or profitable to the wife, may give the license to the wife, which the husband might give, which thus given, shall be as good as if given by the husband. 3 Novisima Recop. 404. A license thus given by the Judge, in consequence of the absence of the husband, does not authorize the-wife to bind the husband, nor does it appear that she pretended to do so, in the purchase from Varela. From the conveyance, it sufficiently appears that this property did not become a part of the community property of husband and wife.

The conveyance of the land by Mexia to Merle, as trustee for Blandin, for the consideration of $7,306.25 expressed, does not contain the necessary formula for a transfer of title, under the laws of Louisiana. But those laws do not govern the right of Mexia to make the conveyance, or to make it in the form in which it was executed.

To show that this act was done, by Mexia, with the consent of his wife, a letter of hers is appended to the transaction, and a part of it embodied in the conveyance. This letter bears date of November 1st, 1836, while the áuthentic act in which it is incorporated, is dated the 10th of February, 1836. It is not readily perceived how; a letter, dated ten months after the con-, veyance, could constitute a part of it. From the instrument, it appears that Merle was a purchaser for himself, his heirs and assigns, when it is admitted that he purchased as the trustee of Blandin, and with his money.

But the facts in the case show that no money was paid on the purchase. The Hon. P. Soule says, the sale was made by General Mexia to John A. Merle, without consideration, and for the sole purpose of protecting the property of his' children, understanding that Texian citizens only could, hold lands in Texas. The witness was well • acquainted with Antonio Blandin, who consulted with the witness, and stated the land was confided to his care, never speaking of it as his private, property, or ás having paid any consideration for it. Blandin uniformly spoke of the land as a trustee, and not as owner.

The deposition of E. M. Pease, one of the defendants, was taken by the complainants, but it was objected to by the defendants bélow, on the ground that Pease was a party, and that the Commissioner, of the United States who had taken the same, did not appear to have been sworn. The District Court refused to admit the deposition on both grounds. As the deposition was not taken with the leave of the court, it was' properly overruled, on the ground that the .witness was a party,, but the other ground in regard to the Commissioner not appearing to have been sworn, was not sustainable. The Commissioner is an officer appointed by the courts of the United States', and his official acts are primd facie valid.

Had General Mexia power to make a conveyance to Merle ? Was it executed according to the' laws of Louisiana, where the act was done, or. the laws of Texas, where the land is situated, and which must govern the act? The laws of Louisiana do not authorize the transfer of a child’s property by parents or guardians, without an order from the Judge, granted On the advice of a family meeting. 1 Civil Code, Art. 334, 338. No-such ceremony was observed in the conveyance to Merle, as the law requires, and consequently the act was not operative by the Louisiana law. The letter of the wife, if it were genuine and bore the proper date, is not evidence of a family meeting, and that the sale was “ of absolute necessity, or of evident advantage to the manor.”

It is contended that the property in question came to Adelaide Matilda, through the means of her father, and, consequently, that he had the power to convey it. Such property under the civil law is called profectitious.

There is no evidence that the father paid any consideration for.this property. It was purchased by the mother for the benefit of her daughter; and when the concession was located and arranged, the perfect title was made in the name of the daughter. The presumption that the consideration paid was paid by the mother, arises from the facts. Her marital rights under the civil law, as to property, were independent of her husband; and in this view it may well be presumed that she paid the consideration for the purchase.

The fact that no money was paid by Merle, although a large sum was inserted in the act of conveyance, shows the nature of that transaction; and that the step was taken, as sworn.'to by Mr. Soulé, to preserve the land by a legal ownership, for the benefit of his daughter.

The mother having procured the complete title to the property in the name of her daughter, she had no power to consent to or authorize the transfer of it by her husband. The pretence of the letter gives no validity to the act of conveyance. The transfer of the concession to the mother, by Varela, for her daughter, •was not made as a part of the marital community. The conveyance to the mother and the declared object of it, negátives such a presumption.

Acquired as the property was, the law denominates it adventitious. It came to their daughter through her mother. In this view, it is contended that the usufruct was in the father, “who is bound to defend and preserve' it, both in court and out; ” 3 Las Siate Partidas, 149, and that he had power to convey it.

From the' terms of conveyance, it is clear that Mexia assumed to act, not in his own right, but in the character of father and •natural tutor, and by authorization of his wife. . The instrument purports to convey the title of his daughter, which admitted the right to be in her. The letter of the wife, as he supposed, was evidence of a family meeting required by law, and under which he assumed to act.

A guardian cannot dispose of the property of his ward without the permission of the judge of his domicil. 1 White’s Recop. 15 and 16, Part 4, L. 14; tit. 11, p. 4. During the minority of the child, the only right of the father is, to take the usufruct. He has no power to sell the' property of the minor, except for certain purposes, and under the sanction of- the Judge.-2 Part. 1137. The conveyance to Merle was not made as the law requires, and it was therefore void. It was not valid under the laws of Louisiana, nor under the laws of Texas and Coa-, huila.

The decree of the District Court is affirmed,

dm

Mr. Justice NELSON concurred in the result to which the above opinion arrived.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, 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 District Court in this cause be, and the same is hereby, affirmed, with costs.


source: Caselaw Access Project

author: Mr. Justice CURTIS

license: Public Domain

text:
    The General Mutual Insurance Company, Plaintiffs in error, v. Ebenezer B. Sherwood.
    Under a policy insuring against tho usual perils of the sea, including barratry, the underwriters are not liable to repay to “the insured, damages paid by.him to the owners of another vessel and cargo, suffered in a collision occasioned by the negligence of the master or mariners of the vessel insured.
    A policy cannot be so construed as to insure against all losses directly referable to the negligence of the master and mariners. But if the loss is caused by a peril of the sea. the underwriter is responsible, although the master did not use due care to avoid the peril.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.
    It was an action of assumpsit brought by Sherwood against the General Mutual- Insurance Company, upon á policy of insurance, dated New York, 17th of- October, 1843, by which the company insured' Sherwood to the amount of $8,000, for the account of whom it might concern, loss payable to him, upon the brig Emily, from the 17th October, 1843, at noon, until the 17th October, 1844,- at noon, the vessel being valued in the policy at $16,000. .
    This policy was effected for the benefit, and to protect tne interest of Frederick Sherwood and Abraham Sherwood, part owners of said vessel.
    .On the 13.th March, 1844, the brig sailed irom Charleston with a cargo of-merchandise, bound for New York, being at the time provided with a skilful and experienced master, experienced and skilful mates, and a competent crew, and was in all respects seaworthy for the voyage.
    About 5 o’clock in the afternoon of Tuesday, 19th March, a licensed pilot boarded them, and took the command and management of the vessel. The wind being unfavorable, the brig ran, closehauled, heading north and north by east, until the pilot considered himself up to the point of the R-omer Shoals; he then tacked and stood in for Sandy Hook, heading to the southward and westward, closehauled. Between 7 and 8 o’clock at night, the pilot gave orders to go about; in attempting to execute this order, the brig misstayed, and the pilot then gave orders to wear ship. At this time, and whilst in the act of wearing, being very close to the shore, the rigging of the vessel having become éntangled, and the crew being occupied with the manoeuvring of their vessel, the first mate, who was on the top-gallant forecastle, saw a schooner very close to them. Confused by this sudden appearance, his attention in keeping a sharp lookout having been distracted by his attending to the working of the vessel, he, in this sudden emergency, exclaimed, “ ilelm hard, down! luff! luff!” The man at the wheel obeyed, and.almost instantaneously the- brig struck" the schooner, which proved to be “ The Virginian,” bound from Norfolk, with a full cargo of merchandise, for New York. The order given by the mate to “ luff,’2 was erroneous.

      The brig Emily was injured by the collision to the amount of $300; the schooner Virginian was so much injured that she sunk, and with her cargo was totally lost.
    _On the 26th March, 1844, the owners of the schooner filed their libel in the District Court of the United States for‘the Southern District of New York, against the brig .Emily, claiming that she was specifically liable .for .the loss and injury occasioned by the libel.
    The owners of the Emily filed their answer, denying that the collision dras occasioned by the fault of those in charge of her, and imputing the blame to the crew of the Virginian. On the 12th October, 1845, the cause was brought to a hearing, and witnesses examined on both sides.
    On the 22d April, 1845', Judge Betts pronounced his opinion to be, that the brig Emily was to leeward of the Virginian when the latter was first seen; that no sufficient and proper look-out was kept on board her at the time ; that the intermission, for the moment,, of their precautionary vigilance on board the Emily, might very naturally'spring out of a confusion likely to arise - from the failure of the vessel to come round to the wind, her dangerous proximity to the shore, the entanglement of some of the running rigging which impeded her manosuvre, and the distraction these circumstances were calculated to produce in the attention of the mate, who, at the moment, appeared to have ■ been the only one acting as look-out forward; but that these circumstances did not relieve the vessel from maintaining these precautions, and from the consequences of the omission to do só; and the Judge accordingly held, that the collision occurred by-the negligence or fault of the brig. He decreed in favor of the libellants for the value of the schooner Virginian, and of so much of the cargo as belonged to her owners. It was referred to the clerk to ascertain and report the amount of the loss and damage. The cause came on to be heard on the 3d of June, 1845, upon the clerk’s report and exceptions thereto. The court ordered and decreed, that the libellants recover their damages by means of the premises, viz. $5,250,9^, with their costs, and that the brig Emily be condemned for satisfaction thereof; the libellants’ costs were taxed at $704I9D°i!. On the 3d July, 1845, the owners of the Emily appealed to the Circuit Court of the United States for the Southern District of New York, and in November, 1846, ti.e appeal was argued before Mr. Justice Nelson.
    On the 6th April, 1847, Judge Nelson delivered his opinion, and found, upon the proofs, in substance, that the Virginian was not in fault; that the mistaken order of the mate of the- brig to the man at the wheel, .in connection with the derangement of the running rigging of the vessel, and the confusion on board from her misstaying a few minutes- before, had produced the collision. The Circuit Court affirmed the decree of the District Court, with costs. This decree was settled by compromise, and upon payment by the owners of a sum less than the decree, it was satisfied. Early notice of the pendency of the action in the District Court, and also of, the appeal to the Circuit Court, was given to the Mutual Safety Insurance Company, with a request that they would unite in the defence, or take such measures as they might deem proper.
    Owners of other parts of the cargo lost by the collision, filed their libels against the Virginian, which, after the decrees above mentioned, were settled by compromise; other claims were also made, and settled by compromise; in every instance, the sum paid being less than the claim. On the 23d August, Í847, the owners of the brig Emily, having previously presented to their various underwriters preliminary proofs of the loss, copies of the proceedings in the District and Circuit Courts, and of the payment and settlement of the demands aforesaid, commenced suits upon the policies' of insurance, in the Circuit Court of the United States. The declaration filed in the present action contains two special counts, and the common money counts.
    The special counts, set forth all the facts and circumstances with great particularity.
    The defendants filed demurrers to each of the special counts, assigning as cause, that neither of the said counts showed any loss or damage by any peril covered by the policy of insurance. The plaintiff below joined in demurrer.
    The cause was argued in April, 1848, before his Honor, Mr. Justice Nelson, and the Hon. Samuel R. Betts. Judgment was given upon the demurrer in favor of the plaintiff below. The defendants did not interpose any other answer to the two special counts, but to the common counts (III. IV. V. and VI.) they pleaded the general issue.
    The court having decided the demurrers, ordered the damages to be assessed under the special counts. In May, 1849, the jury assessed the plaintiff’s damages at $4,526^. Judgment was signed 5th June, 1849.
    Upon the assessment of the damages,-the defendant’s counsel prayed the court to instruct the jury — '
    1. That the general objection to the recovery of the plaintiff) was, that [it] is apparent, on the face of the declaration, that the loss claimed was not occasioned by a peril insured against, but was to be attributed solely to the gross negligence of the agents of the assured; and therefore, that th6 loss was either an exception from the terms of the policy, or whs not covered) by them at all.

      2. That the rule “ causa próxima non remota spectatur,” in its proper application, relieves the defendants from all liability; since the. proximate cause here was, according to the decree of the District and Circuit Court, “ the fault of the Emily.” The collision by itself did not create the liability to pay. The want of care, skill, and vigilance on the part of the master and crew of the Emily were to be superadded to the collision.
    3. That if the negligence and fault of the assured, and not the collision, were the proximate cause of the loss, such fault and negligence in this case, (without which the decree would not'have been made,) should certainly excuse the underwriters.
    4. That even if the insurer is liable for the amount of the claim agaiust the Emily for the loss of the schooner, it does not follow that he is also liable for the loss of the cargo on board the schooner Virginian. No case has yet carried the liability of the underwriter to this extent.
    5. That the cost of defending the suits are not chargeable upon the. underwriters.
    6. That the counsel fees to the advocate are clearly inadmis sible.
    Whereupon his honor, the Judge, charged the jury: — It appeared, from the evidence, that the brig Emily sailed from Charleston, for New York, on the thirteenth day of March, in the year 1841, with a cargo of cotton and other mercliándise; that on the afternoon of the 18th day of March, aforesaid, being near Barnegat, she took aboard a licensed pilot, and proceeded towards New York, the wind being boisterous, and blowing in flaws ; that between 7 and 8 o’clock in the evening she stood over for the Homer Shoals, closehauled on a wind, heading for Sandy Hook. Finding that the brig could not fetch in to the Hook upon that tack, and having run as close to the beach as he deemed prudent, the pilot gave orders to tack ship; in consequence of the maintopsail-brace being slacked the vessel did not go about, and orders were then given by the pilot to wear ship, and whilst in the act of wearing, the mate of the Emily discovered a sail close by, which proved to be the schooner Virginian, bound for New York, with a cargo on board; the mate cried out, sail ahead! but almost immediately thereafter the brig struck the schooner and sunk her, with her cargo. The owners of the schooner Virginian filed their libel in the District Court of the United States for the Southern District1 of New York, before referred to, against the brig Emily,- alleging that the collision was occasioned by the fault and mismanagement of those having charge of the Emily. An answer was filed by the owners of the latter, denying that the collision was properly attributable to the Emily ; and, on the contrary, alleging that it was occasioned by the fault and unskilfulness of those on board of the schooner; proofs were taken in the District Court, and the cause having been heard upon the pleadings and proofs, an interlocutory decree was pronounced therein on the twenty-second day of April, in the year 1845, whereby, after reciting that it appeared to the court that the said collision, and the damages and loss incurred by the libellant in consequence thereof, occurred by the negligence or fault of the said brig Emily, it was considered that the libellants were entitled to recover the damages by them sustained thereby; and by which decree a reference was ordered, to ascertain the’value of the said schooner Virginian, her tackle, &c., at the time of the collision, and of the cargo then on board of her, belonging to the libellants, and the amount of the loss in the premises sustained by the libellants by means of such collision; and afterwards, the said cause having again been heard upon exceptions to thé report, and the proofs $ud allegations of the respective parties, a final decree was pronounced thereon on the seventh day of June, in the year 1845, whereby it was ordered, adjudged, and decreed, by the said District Court, that the libellants recover in the said action their damages, by means of the premises, the sum of five thousand two hundred and fifty-four dollars and seventy cents, together with their costs to be taxed; and that the said brig, her’tackle and apparel, be condemned for satisfaction thereof, which said costs of the libellants were afterwards duly taxed at $704.96. From this decree an appeal was taken, by the owners of the brig Emily, to the Circuit Court of the United States for the Southern District of New York, in the second circuit, and after hearing the proofs and the arguments of counsel, the court affirmed the decree of the District Court, -with the costs of the respondents to be taxed. After the decision of this court had been pronounced, another libel was filed by the owners of .a portion of the cargo lost on board the Virginian, against the brig Emily, and claims were ma'de, and'libels threatened by others of the-shippers Of the cargo lost on board of the schooner, against the owners of the Emily, which action and claims by the owners, of the .said cargo were compromised arid settled by the ownérs of the EriSily. That if they should find, upon'the’ evidence, that, at the time of sailing .from Charleston, the brig Emily was a seaworthy vessel, properly equipped for the voyage to New York, and that she had on board a skilful master, and a sufficient and competent crew, the defendants are liable upon the policy given in evidence for the one half of the. loss to the brig Emily, arising from the- collision with the schooner Virginian, not exceeding the sum insured, notwithstanding that it was-occasioned by, or resulted' from, the- fault of the pilot, or of the master' and crew of the brig, either from want of keeping a sufficient look-out or from mismanagement of the vessel.
    The direct and immediate consequence of the collision was that a lien was created on the brig, in favor of .the owners of the Virginian, and of the owners of the cargo on boar.d of her, to the extent of the value of the schobner, and of the cargo that was destroyed by the disaster, and the plaintiff is entitled to recover from the underwriters, nqt only the cost of the actual repairs o'f the injury done to the brig, but also the several sums that her owners have, actually and in good faith paid to the owners of the schooner, and of the cargo lqst with her, in order ■to discharge their vessel- from the liens created by the said collision ; that the plaintiff is also entitled to recover from the underwriters on the brig the actual expenses and costs, including reasonable advocate’s fees, necessarily incurred in the defence of the .brig’from the aforesaid claim.
    The'policy of insurance, in this case, is subscribed for $8,000, the vessel being valued therein at $16,000 ; it was therefore an insurance upon one half of the.vessel, and the defendants are consequently liable for one half only of the loss and. damage sustained by- the assured in consequence of the said collision which, the jury shall find, upon the evidence, was actually and properly paid by the owners of the Emily, in order to. relieve their vessel.
    The counsel for the defendant then and there excepted to said charge, so far as the same differed from, or did not conform to, the instructions prayed for by him, as above.
    The jury thereupon rendered a verdict for the plaintiff, for four thousand five hundred and thirty rsix dollars and thirty-four cents damages, and six cents costs.
    And because the said several matters so offered and given in evidence, arid insisted upon By the defendants aforesaid, and the charge of the said Judge, and the said exceptions taken to the same, do not appear by the record of the verdict aforesaid, the said defendants have caused the same to be; written on this bill of exceptions, to be annexed to such record, arid., have prayed, thérsaid Judge to set his hand and seal to the same. Whereupon the Hon. Samuel Nelson, the associate Justice before •whom the said issues were .tried, and'said exceptions taken, and one of the judges of said Circuit Court, hath -hereto set his hand and seal, this twenty-eighth day of .November, in the year of our Lord one: thousand eight hundred and fifty-one.
    Upon this bill of exceptions, and the judgment of the court, upon the demurrers, the case came up to this, courj;.
    It was argued by Mr. A. Hamilton, Jr., for the plaintiffs in error, and Mr. Butler, with whom'was Mr. Cutting, for the defendant in error.
    The points made on the part of the plaintiff in error, were the following.
    I. The general objection to the recovery, of the plaintiff is, that it is apparent, on the face of the declaration, that the loss that is claimed was not occasioned by a peril' insured against; but is to be attributed solely to the gross negligence of the agents of the assured. Hence the loss is either an exception from the terms of thé policy, or is not covered by them at all. Emerigon, vol. 1, p. 429, (Ed. 1827, 329, 336); Tanner v. Bennett, 1 Ry & Moody, 182; Surdet v. Hall, 4 Bing. 607; 2 Arnold, 775, 770, 777, cases cited.
    II. The rule “ causa próxima non remota spectatur,” in its proper application, relieves the defendant from all liability, since the- proximate cause here was, according to the decree of the District’and Circuit Courts, “the fault of the Emily.” The collision, by itself, did not create the liability to pay. The want of skill, care, and vigilance on the part of the master and crew of the Emily was to be superadded to the collision. Paddock v. Franklin. Insurance Company, 11 Pick. 227; American Insurance Company v. Ogden, 20 Wend. 287; Starbuck v. New England Marine Insurance Company, 19 Pick. 198; Robinson v. Jones, 8 Mass. 536.
    IÍI. If, then, the negligence and fault of the assured, and not the collision, were the proximate cause of the loss, such fault and negligence, in this case, (without which the decree yould not have been made,) should certainly excuse the underwriters. Hazard v. New England Insurance Company, 1 Sumn. 218; 3 Kent, 5th ed. p. 176, note. a. 371, 373; Copeland v. New England Insurance Company, 2 Metcalf, 432; Cleveland v. Union Insurance Company, 8 Mass. 308; Bradhurst v. Col. Insurance Company, 9 Johns. 17-21; Potter v. Suffolk Insurance Company, 2 Sumn. 197; Galbraith v. Gracie, 1 Wash. C. C. R. 219.
    IV. But-even if the insurer is liable for the amount of the decree against the Emily, for the loss of the schooner, it does not follow that he -is also liable for the loss of the cargo on board the schooner. No case has yet carried the liability of the underwriter to this extent.
    The points made by the counsel ibr the defendant in error were the following.
    I” The underwritérs .are responsible for losses by any of the perils insured against, althpugh such losses may have-been occasioned by, or have resulted from, the negligence or fault of the master or crew. If the assured has provided a seaworthy vessel, with a skilful master and a sufficient and competent crew, the underwriter takes, the risks . of navigation; and of the perils insured against, although caused by the negligence; carelessness or unskilfulness of the master and crew. Peters v. Warren Ins. Co. 14 Peters, 99; Peters v. Warren Ins. Co. 3 Sumn. 389; Waters v. Merchants Ins. Co. 11 Peters, 213; Columbia Ins. Co. v. Lawrence, 10 Peters, 507; Patapsco Ins. Co. v. Coulter, 3 Peters’s R. 222; Hale v. Wash. Ins. Co. 2 Story R. 176; Smith’s Mercant. Law, (Amer. Edit.) 347; Sadler v. Dixon, 8 Mees. & Welsby, 895; Dixon v. Sadler, 5 M. & Welsby, 405; Bush v. The Royal Ex. Ins. Co. 2 B. & Ald 73; Walker v. Maitland, 5 B. & Ald. 174; Bishop v. Pentland, 7 B. & C. 219; Shore v. Bentall, 7 B. & C. 798, n.; Henderson v. Western Mar. & F. Ins. Co. 10 Robinson, 164; Copeland v. N. Eng. Mar. Ins. Co. 2 Metcalf, 432; Perrins, Adm’r, v. Protect. Ins. Co. 11 Ohio R. 147; Park, Ins. 482, (Eng. Edit, of 1842, page 156.) Grim v. Phenix Ins. Co. 13 Johns. 451; in this country, and Law v. Hollingsworth, 7 Term R. 156, in England, and other cases decided about the same time, are not cor-: reet in principle, are now generally disapproved of, and are substantially overruled. Opinion of Betts, J., in this ease; 1 Blatchford’s R. 251.
    • II. A loss by collision is one of the perils insured against, amuch so as loss by fire, stranding, capture, &c. If it occurs without fault .on the part of the insured vessel, it is conceded that the underwriters are bound to indemnify the assured against loss; and, upon principle and authority, the insurers,are equally liable if the collision happens through the fault, mistake, error' of judgment, or carelessness of the vessel insured. Peters v. Warren Ins. Co. 14 Peters’s R. 99; S. C. 3 Sum. 389; Hale v. Washington Ins. Co. 2 Story. 176; 1 Phill. Ins. 636.
    III. The, direct and immediate consequence of the collision was that, eo instanii, a charge, encumbrance' or lien was created on the ship to . the ’extent of the injury done .to the Virginian and cargo. This charge caused the neqessity of an expenditure by the assured, without which he could not extricate nor repossess himself of his vessel. This loss is as direct a consequence of- the collision as if the Emily had beeminjured so ás to have required repairs by carpenters to the same amount.
    IV. The underwriters are liable not" only for the 'amciun.t of the lien or. charge that was created in favor. of the owners of the Virginian, but also .for the lien or charge created by the destruction of the cargo, and for which the Emily >was‘ specifically liable in rém.

    V. The defendants are responsible for all the costs, chargeB, and expenses, fairly and reasonably incurred by the plaintiff below, in defending the vessel from the claims made against her;. this1 is necessary to afford him a full indemnity; and the clause in the* policy, rendering it proper and necessary to sue for labor and travel in and about the defence, safeguard and recovery of the vessel,, contemplates and provides for it. See 2 Phillips on Ins. 509, 749, 464; 1 Id. 693. Hastie v. De Peyster, 3 Caines’s Rep. 190 — a case of reinsurance; suit against the first insurer defended,, and a recovery with costs — principal opinion by Kent, C. J. “ Such charges are allowed,.as composing part of,a claim for indemnity.” Per Livingston, J.: Plaintiffs gave notice to defendants, who took no steps to prevent the progress of the suit to judgment; all the costs of that suit, both plaintiffs’ and defendants’, are a proper charge in this: “ not pretended that, its defence was unnecessary or improper.” 1 Story’s Rep. 458; Hale v. Wash. Ins. Co. 2 Story, 176; Peters v. Warren Ins. Co. 14 Peters’s Rep. 99, (p. 100, near the foot.). “ Expenses of defending the suit” for a collision, included in the adjustment. Watson v. Marine Ins. Co. 7 Johns. Rep. 57 — a case of capture and recovery for a total loss, and. also expenses of the captain in endeavoring to obtain the release and restoration of the ship; travelling, board, wages, and 1,105 livres Iqft in the hands of the consignees, to prosecute an appeal to the Council of State; items were subject to opinion of court; another charge was deducted; the above allowed. Jumel v. Marine Ins. Co. 7 Johns. Rep. 412, 426 — case of capture, condemnation, appeal, compromise, sale; purchase by master;. held master not bound by appeal; only to act in good faith, and sound discretion, &c. Gardere v. Columbia Ins. Co. 7 J. R. 514, (same principles.) Francis v. Ocean Ins. Co. 6 Cowen, 404, affirmed, 2 Wend. 64 — seizure as for illicit trade — irregular condemnation and sale, no defence by master, &c. Expense incurred in prosecuting a claim for the proceeds of the ship. Held,' “ entitled to recover all the/ expense fairly incurred in obtaining a restoration of the proceeds of the' vessel.”- Bridge v. Niagara Ins. Co. 1 Hall’s Sup. Ct. R. 423 — salvage expenses, including costs of legal proceedings tó ’ ascertain validity and amount of salvage claims, storage' of cargo, bottomry expenses, protests, surveys, wages and'provisions,whilst seeking a port of-refitting, and many other instances of .charges, and expenses, resulting from and incident to losses by perils insured against. 9 Wend. 416, Ricket v. Snyder — In. an action for breach of covenant of seisin, the plaintiff is entitled to recover counsel fees as well as taxable costs incurred in defending the premises. The covenant of seisin is one of indemnity. 2 Phill. Ins. 464, 509, 749, 1 Id. 693. — The defence in the District Court, and on appeal in the Circuit Court, of the libel, by the owners of the Virginian, (owners also of some of the cargo,) and the'decisions thereon, justified the plaintiff in compromising the-other claims without litigation. By such compromises 'he greatly diminished the sum for which the defendants were liable. He was entitled to recover if he had paid dhe amounts withóüt litigation. Hale v. Washington Ins. Co. 2 Story, 176.
   Mr. Justice CURTIS

delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the Southern District of -New York.

The action was assumpsit on a time policy of insurance, subscribed by 'the plaintiffs in error, upon the brig Emily, during one year from the seventeenth day of October, 1843, for the sum of eight thousand dollars, the vessel béing valued.at the sum of sixteen thousand dollars. The policy, described in the declaration, assumed to insure against the usual sea perils, among which is barratry of the master and mariners. The declaration avers, that during the prosecution of h voyage, within the policy, while on the high seas, and near thé entrance, of the harbor of the city of New York, by and through the want of a proper look-out, by the mate of the said brig, and, by and through the erroneous order of the chief mate, who was stationed on the top-gallant forecastle of the said brig, who saw the schooner, hereinafter named, and cried out to the man at the wheel, “helm hard down — luff”—whereas, he ought not to ha,ve given the said order; and, by and .through the negligence and fault of the said brig Emily, the said brig ran into a schooner called the Virginian, and so injured her that she Sank, whereby the said brig Emily became liable 'to the owners of the' said schooner and her cargo, to make good their damages; which liability was a charge and encumbrance On the said brig. The declaration then proceeds to aver, that the brig was libelled, by the owners' of the schooner and her cargo, in the District Court of the United States; that a decree was there made, whereby it was adjudged, “ Thatthe'collisionin the pleadings mentioned, and’ the damages and- loss incurred by. the libellants, in consequence thereof, occurred by the negligence or faiilt of the said brig, and that the libellants were entitled to recover their damages by them sustained thereby;”’ that the.same having been assessed, a decre.e therefor was made by the District Court, which, on appeal, was affirmed by the Circuit Court, which found, “ That the hands, on. board the Emily, failed to. keep a proper look-out, and, that the said brig might have avoided, the collision, by the use of proper caution, skill, and vigilante.” The declaration further avers, that the plaintiff has paid divers sums of money, to satisfy this decree and the expenses of making the defence, amounting'to the sum of eight thousand dollars.

This statement of the substance of the declaration, presents the question which has been here argued, arid sufficiently shows how it arose; for, although there was a demurrer to. the first two counts in the declaration, and a trial upon the general issue .pleaded to the other counts, and a bill of exceptions taken to the ruling at the trial, yet the same question is presented by each mode of trial, and that, question is, whether, under a policy insuring against the usual perils, including barratry, the underwriters are liable to repay to th.e insured, damages paid by him to the owners of another vessel and cargo, suffered in a collision occasioned by the negligence of the master or mariners of the vessel insured.

The great and increasing internal navigation of the 'United States, carried on over long distances, through the channels of rivers and other comparatively narrow waters, where the dar ger of collisions,, and the frequency of their occurrence, are much ■greater than on maritime voyages, renders the respective rights of underwriters and insured, growing out of such occurrences, of more moment in this than in any other civilized country; and the court has considered the inquiry presented by this case, with the care which its difficulty and its importance demand.

.In examining, for the .first time, any question under a policy of insurance, it is necessary to ascertain whether the contract has received a practical construction, by merchants and underwriters; not through any partial or lo'cal usages, but by the general consent of the mercantile world. Such a practical construction, when. clearly apparent, is of great weight, not only because the parties to the policy may be presumed to have contracted in reference to it, but because such a practice is very high evidence of the general convenience ana substantial e'quity of it, as a rule... This is true of most commercial contracts; but it is especially true of a policy of insurance, which has been often declared to be' an “ obscure, incoherent, and very strange instrument,” and, “generally more informal than any other brought into a court of justice: ” (Per Buffer, J., 4 T. R. 210; Mansfield, C. J., 4 Taunt. 380; Marshal, C. J., 6 Cr. 45; Lord Mansfield, 1 Bur. 347); but which, notwithstanding the number Uhd variety of the interests which it embraces, and of the events by which it is affected, has been reduced to much certainty, by the long practice of. acute and well-informed' men in cpmmefcigd countries; by the decisions of courts in America arid in JEngland,.and by able writers on the subject, in this and other 'Countries. .

.Arid it should not be forgotten, that, not-only in the introduc-. tion of this branch of law into England, by Lord Mansfield, but i ^ its progress since, both there and here, a constant reference has been had to the usage of merchants, and the science of insurance law has been made and kept a practical and convenient system, by ayoidihg subtle and refined reasoning, however logical it may seem to be, and looking, for safe practical rules.

Now, although cases like the present must have very frequently occurred, we are not aware of any evidence, that underwriters have paid such claims, or that, down to the time when one somewhat resembling it was rejected by the Court of King’s Bench, in De Vaux v. Salvador, (5 Ad. and Ellis,) decided in 1836, such a claim was ever made. And we believe that, if skilful' merchants, or underwriters, or lawyers, accustomed to the practice of the commercial law, had'been asked whether the insurers on one vessel were liable for damage doné to another vessel, not insured by the policy, by a collision occasioned by the negligence of those on board the vessel insured, they would, down to a very recent period, have answered, unhesitatingly, in the negative.-

As we shall presently show, such, for- a long time, was the opinion of the writers bn insurance, on the continent of Europe, and in England and America. And this, alone, would be strong proof of the general Understanding and practice of those connected with this subject.

Butj although this practical interpretation of the contract is entitled to much weight, we, do not consider it perfectly decisive. It may be, that, by applying to the case the settled principles of the law of insurance, the loss is within the policy; and, that it' has not heretofore been found, to be so, because an exact attention has not been given to the precise question. .Or, it may'be, that the weight of recent authority, and the propriety of rendering the commercial law as uniform as its necessities, should constrain us to adopt the rule contended for by the defendant in .error. And, therefore, we proceed to- examine the principles and authorities, bearing .on this question.

Upon principle, the true inquiries are, what was the loss, and what was its cause ? ■ •

The. loss was the existence of a lien on the vessel insured, securing a valid claim'.for damages, and the consequent diminution of the value of that vessel. In Other words,'by operation, of-law, the owners of the Virginian obtained a lien on the vessel insured, as security for the payment of damages, due to them for a marine tort, whereby their property -was injured.

What was the cause of this loss ? We think it is correctly stated by this court, in the case of the Paragon, 14 Peters, 109. In that case, it was said : “ In the common case of an action for damages for a tort done by the defendant, río one is accustomed to call the verdict of the jury and the judgment of the court thereon* the cause of the loss to the defendant. It is properly attributable to the original tort, which gave the right to damages consequent thereon.” The cases there spoken of, were claims in personam. But the language was used to illustrate the inquiry, what should be deemed the cause of a loss by a claim in rem, and is strictly.applicable to such a claim. Whether the owners of the Virginian would proceed in rem or in personam, was at their election. It affected only their, remedy. Their right, and the grounds on which it rested, and the extent of the defendant’s liability, and its causes, were the same in both modes of proceeding. And, in both, the cause of the loss .of the defendant would be the negligence of his servants, amounting to a. tort. The loss consisting in a valid claim on the vessel insured, we must look for the cause of the loss in the cause of the claim, and this is expressly averred by the declaration to have been the negligence of the servants of the assured. From the nature of the case, it was-absolutely necessary to make such an averment. If the declaration had stated simply a collision, and that the plaintiff had paid the damages suffered by the Virginian and her cargo, it would clearly have been bad on demurrer; because, although'it would show-a loss, it would staté no cause of that iloss. • It is only by adding the fact, that the damage done to the Virginian was caused by negligence, that is, by stating the cause of damage, that the cause of payment appears, and, when it appears, it is seen to be the -negligence of the servants of the assured.

We know of no principle of insurance law which prevents us from looking for this sole operative cause, or requires us to stop short of it, in- applying the maxim causa próxima non remota speptatur. The argument is, that collision, being a peril of the séa, the negligence which caused that peril to occur is not to be inquired into; it lies behind the peril, and is too remote. This is true when the loss was inflicted by collision, or was by. law a necessary consequence of it. The underwriter cannot set up the negligence of the servants of the assured as a defence. But in this case he does not seek to go behind the cause-of loss, and defend himself by showing this cause was produced by negligence.- Thé insured himself goes behirid the collision, and shows, as the sole reason why he has paid the. money, that the negligence of his servants compelled him to pay it. It is true that an expense, attached by the law maritime to the subject insured, solely as a consequence of a peril, may be considered as proximately caused by that peril. But where the expense is attached to the vessel insured, not solely in consequence of a peril, but in consequence of the misconduct of the servants of the assured, the peril per se is riot the efficient cause of the loss, and -cannot, in any just sense, be considered its proximate cause. In snch a case the real cause is the negligence, and unless the policy can be so interpreted as to insure against all losses directly referable to the negligence of the master and mariners, such a loss is not covered by the policy. We are of opinion the policy cannot be so construed. When a peril of the sea is the proximate cause of a loss, the negligence which caused that peril is not inquired into; not because the underwriter has taken upon himself all risks arising from negligence, but because he has assumed to indemnify the insured against losses from particular perils, and the assured has not warranted that his servants will use due care to avoid them.

These views are sustained by many authorities, Mr. Arnould, in his valuable Treatise on Insurance, (vol. 2, 775,)' lays down the correct rule: “ Where the loss is not proximately- caused by the perils of the sea, but is directly referable to the negligence or misconduct of the master or other .agents of the assured, not amounting to barratry, there seems -little doubt that the underwriters would be thereby discharged.” -To this rule rmist be referred that class of cases, in which the misconduct of the master or mariners has either aggravated the consequences of a peril insured against, or been of itself the efficient cause of the wholé loss. Thus, if damage be done by a peril insured against, and the master neglects to repair that damage, and in consequence of the want of such repairs, the. vessel is lost, the neglect to make repairs, and not the sea damage, has been treated as the proximate cause of the loss.. In the case of Copeland v. The N. E. Marine Ins. Co. (2 Met. 432,) Mr. Chief Justice Shaw reviews many of the cases, and states that the actual cause of the loss is the want of -repair, for which the assured are responsible, and not the sea damage which caused the want of repair, for which it is-admitted the underwriters are'responsible.” And the same principles were applied by Mr. Justice Story, in the case of Hazard v. N. E. Marine Ins. Co. (1 Sum. R. 218,) where the lóss was by1 worms, which'got access to the vessel in consequence of her bottom being injured by stranding, which injury the master neglected to repair. So-.where a vessel has been lost or disabled, and the cargo saved, a loss caused by the neglect of the master to transship, or repair his vessel and carry the cargo, cannot be recovered. Schieffelin v. N. Y. Ins. Co. 9 Johns. 21; Bradhurst v. Col. Ins. Co. 9 Johns. 17; Am. Ins. Co. v. Centre, 4 Wend. 45; S. C. 7 Cow. 504; McGaw v. Ocean Ins. Co. 23 Pick. 405. So where condemnation of a neutral vessel was caused by resistance of search; Robinson v. Jones, 8 Mass. 536; or a loss arose from the master’s negligently leaving the ship’s register on shore; Cleveland v. Union Ins. Co. 8 Mass. 308. So where a vessel was burnt by the public authorities of a place into which the master sailed with a false bill of. health, having the plague on board; Emerigon, (by Meredith,) 348; in these and many other similar cases, the courts, having found the efficient cause of the loss to be some neglect of duty by the master, have held the underwriter discharged. Yet it is obvious that in all such cases, one of the perils insured against, fell on the vessel. And they are to be reconciled with the other rule, that a loss caused by a peril of the sea is to be borneby the underwriter, though the master did not use due care to avoid the peril, by bearing in mind that in these cases it is negligence, and not simply a peril of the sea, which is the operative cause of the loss. It may sometimes be difficult to trace this distinction, arid mistakes have doubtless been made in applying it, but it is one of no small importance in the law of insurance, and cannot be disregardéd without producing confusion. The two rulés are in themselves consistent. Indeed, they ar.e. both but applications, to different cases, of the maxim, causa próxima non remqta spectatur. In applying this maxim, in ’looking for the proximate cause of the loss, if it is found to be a peril of the Spa, we inquire no further; we do riot look for the cause of that peril. But if 'the peril of the sea, which operated in a given case, was.not of itself sufficient to occasion, and did not-in and by itself occasion the loss claimed, if it depended upon the cause ■of that peril whether the loss claimed would follow it, and there-fore a particular cause of the .peril is essential to be shown by the assured, then we mus't look beyond the peril to its cause, to ascertain the efficierit cause of the loss.

The case at bar presents an illustration of both rules. So far as the brig Emily was herself injured by the collision, the cause of the loss was the .collision-, which was a peril insured against, and the assured, showing that his. vessel suffered damage from that cause, makes a case, and is. entitled to recover. Blit he-.claims to recover not only for the damages done to his vessel, which was insured,-but for damages done to the; other vessel, riot insured. To entitle himself to recover these, he must* show not only that they were suffered by a peril of the sea, but that the- underwriter is resp.onsiblc for the consequences of that peril falling on a vessel. riot insured. . It is" this .responsibility which is the sole basis of his claim,' and to make out this responsibility he does not and cannot rest upon the occurrence of a collision.; this affords no ground for this claim ; he-mustshow a particular cause for that collision; and aver that by reason of the existence of that cause, the loss was suffered by him, and so the -underwriter became responsible for it.

This negligence is therefore the fact without which the loss would not have been suffered by the plaintiff, and by its operation the loss is suffered by him. In the strictest sénse, it causes the loss to the plaintiff.- The loss of the owners of the Virginia' was occasioned by a peril of the sea, by which their vessel was injured. But nothing connects the plaintiff with that loss, or makes it his, except the negligence of his servant’s. Of his loss this negligence is the only efficient cause, and in the sense of the law it is the proximate cause.

The ablest writers of the continent of Europe, on the subject of insurance law, have distinctly declared, that, in case of damage to another vessel solely through the fault of the master or mariners of the assured vessel, the damage must be repaired by him who occasioned it, and the insurer is not liable for it. Pothier Traite d’Assurance, No. 49, 50; Boucher, 1500, 1501, 1502; 4 Boulay Paty, Droit Maritime, (Ed. of 1823,) 14, 16; Santayra’s Com. 7, 223; Emerigon, (by Meredith,) 337. If the law of England is to be considered settled by the case of DeVaux v. Salvador, (4 Ad. & El. 420,) it is clear such a loss could .not bé recovered there. Mr. Marshall is evidently of opinion that unless the misconduct of tire master and crew amounted to barratry, the loss could not be recovered. Marsh. on Ins. 495. And Mr. Phillips so states in terms. 1 Phil. on Ins. 636.

It has been urged that, in the case of the Paragon, (Peters v. Warren Ins. Co. 14 Pet. 99,) this court adopted a rule which, if applied to the case at bar, would entitle the insured to recover. But we do. not so consider it. It was there determined that a collision without fault was the proximate cause of that loss. Indeed, unless the operation of law, which fixed the lien, could be regarded as the cause of that loss, there was no cause but the collision, and that was a peril insured against.

We are aware that in the case of Hall v. Washington Ins. Co. (2 Story,) Mr. Justice Story to.ok a-different view of this question ; and we are informed that the Supreme Court qf Massachusetts has recently decided a case in conformity With his opinion, which is not yet in print, and which we have not been able to see. But with great respect for that very eminent Judge, and for that learned and able court, we think the rule we adopt is more in conformity with sound principle, as well as with the practical interpretation of the contract by underwriters and merchants; and that it is the safer’and more expedient rule.

We cannot doubt that the knowledge by owners, masters, and seamen, that underwriters were responsible for all the damage done by collision with other vessels through then- negligence, would tend to relax their vigilance and materially enhance the perils, both to life and property, arising from this case.

The judgment of the Circuit Court must be reversed, and the cause remanded, with directions to render a,judgment for the defendants; ón the demurrer to the first two counts, and award a venire de novo to try the general issue pleaded to the other counts. •

Order.

This cause came on to be heard on the transcript .of the record from the Circuit Court of the United States for the Southern District 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 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 enter a judgment for the plaintiff in error, bn the demurrer to the two first counts, and to award a venire facias de novo, to try the general issue pleaded to the other counts.


author: Mr. Chief Justice TANEY

text:
    Elijah Peale, Trustee of the Agricultural Bank of Mississippi, Plaintiff in error, v. Martha Phipps, and Mary Bowers, wife of Charles Rice.
    Two statutes of Mississippi, one passed in 1843, and the other in 1846, provide that where the charter of a bank shall be declared forfeited, a trustee shall be appointed to take possession of its effects, and commissioners appointed to audit accounts ■ against it.
    Where these steps had been. taken, and the commissioners had refused to allow a certain account, the Circuit Court of the United States had no right to entertain a bill filed by the creditors to compel the trustee to pay the rejected account. There' was a want of jurisdiction.
    The cases upon this point, examined.
    A claim by the trustee, in re-convention, was not a waiver of the exception to the jurisdiction.
    This case was brought up, by writ of error, from the, Circuit Court of the United States for the Eastern District of Louisiana.
    It will be seen, by reference to 4 Howard, 225, ‘that Charles Rice, and Mary his wife, and Martha Phipps, recovered, in an action of ejectment against the Agricultural Bank of Mississippi, two undivided third parts of a lot of ground in the city of Natchez.

      In May, 1847, they sued out a writ of habere facias possessionem, and entered into possession of the property.
    Under the laws of Mississippi, the charter of the bank became forfeited, and Elijah Peale was appointed trustee.
    In April, 1848, Martha Phipps, and Mary Bowers, wife of Charles Rice, filed their petition in the Circuit Court of the United States for the Eastern District of Louisiana, against Peale. They, claimed rent of the property from 1.839 to 1847, damages for injuries done to the property whilst in possession of. the bank, and the costs to which they had been put.by the ejectment. . Peale filed exceptions, and an answer. The second exception,- upon which the judgment of this court turned, was as follows. •
    2. Because the charter of the Agricultural Bank was declared forfeited, and the said bank put in a course of liquidation as an insolvent corporation, and this defendant appointed trustee, for the purpose of collecting the assets thereof, by the Circuit Court of Adams County, in the State -of Mississippi; and said trustee is not amenable to any other court than the one that appointed him, and of which he is the officer; and this court has no jurisdiction whatever of him in his said capacity.
    The following agreement of counsel w£s filed in the case.
    It is agreed between the-parties in the above-named suit, by Prentiss and Finney, attorneys for the plaintiffs, and • Robert Mott, attorney for the defendant, that the following facts shall be admitted upon the trial of the cauge, and the same are hereby admitted:
    1. That the President, Directors, and Company of the Agricul-tural Bank of Mississippi, were in possession of the City Hotel, being'the premises, the mesne profits of which are sued for on the 1st day of December, 1839.
    -2. It is admitted, that the said hotel and furniture rented, from said 1st day of December, 1839, until 1st November, 1842, for the sum of six thousand dollars per annum, and from said.1st November, 1842, until plaintiffs took possession at the rate of four thousand dollars per annum, and that said rates shall be considered as the fair, annual rent of said property during said periods.
    3. It is admitted, that the charter of the'Agricultural Bank has-been adjudged forfeited under the laws of Mississippi, and that the defendant, Elijah Peale, is the trustee appointed under, and by virtue of said laws,, to represent the said corporation.
    4. It is admitted, that the claim sued on, was, before the commencement of this suit, presented to the commissioners appointed in Mississippi, to audit and allow claims against said bank, to wit, to J. A. Van Dalsen and C. L. Dubuisson, and they, were requested to .audit and allow the same, biit that they refused to audit, allow, or in any way recognize the same.
    5. It is admitted, that the claim' sued on, was, before the commencement of this suit, presented to the defendant, as trustee of said Agricultural Bank, and he was requested to allow the same as a just and valid claim against said bank; but that .said defendant, as trustee as aforesaid, refused to admit, recognize, or allow said claim, or any part thereof.
    6. ' It is admitted, that the fees of counsel employed by the plaintiffs in the prosecution of the suit of ejectment against the Agricultural Bank, for the recovery of said City Hotel, in the Circuit Court and' Supreme Court of the United States, exceeded in value' the ,sum of two thousand dollars, and that said sum of $2000 dollars would be a reasonable fee for the conduct of said suit from its commencement to its termination.
    It is admitted, that the furniture of house, &c., on the premises, formed part of the rent in the proportion of one fourth to three fourths thereof. .
    It is admitted, that the charter of the bank was declared forfeited by law, and the assets of the bank put in the possession of the defendant, who still holds tne same as trustee or representative. Bo. Mott, Attorney.

    Prentiss & Finney, For Plaintiffs.

    It is further admitted, that the Agricultural Bank had stopped specie payments previous to the time of the forfeiture of the charter, and did not afterwards resume.
    Prentiss & Finney, Plaintiffs' Attorneys.

    In January, 1849, the cause came on to be 'heard, when the Circuit Court decreed, that the plaintiffs do recover from Peale the sum of $20,058, with interest at 5 per cent, until paid; and that they should have execution upon the assets of the bank, which were then, or might be thereafter, in the hands of the trustee.
    From this decree, Peale appealed and brought the-case up to this court.
    It was argued by Mr. Laivrence, for the plaintiff in error, and Mr. Taylor, for the defendants in error.
    Only that point will be mentioned upon which the judgment of this court turned. 1 '

      Mr. Lawrence contended, for the' plaintiff in error, that the action against Peale, who was a mere officer of the Adams County Court, Mississippi, for the ■ purpose' of collecting the assets of a bank in course of liquidation, could not be maintained in the Uni,ted States Circuit'Court for Louisiana. If the plaintiff wished to bring suit, independent of the proceedings in the Adams County Court, the suit should have been brought against the corporation in its corporate name. Hutch. Dig. § 10, 11, act 1840, p. 326; § 8, act 1843, p. 328; act February 28, 1846, p. 332; 6 Howard, (Miss.) 674.

      Mr. Taylor, for the defendants in error.
    The second ground of exception is- partly based upon the assumption that the affairs of the Agricultural Bank were administered by the trustee Peale, because of the declared insolvency of the bank. ' This is neither admitted, nor proved to be true ; and, in fact, the affairs of the bank were taken from the management of her own officers, because those officers had violated the laws of its existence, whereby it ceásed to exist. But it does not follow, as a necessary consequence, that because the charter of the bank was declared, by the Circuit Court of Adams County, to have been forfeited, or because its affairs were put in. liquidation by the order of that court, or because Mr. Peale, was appointed trustee by that court, no court but the Circuit Court of Adams County can entertain jurisdiction of a suit, against him, as trustee. An administrator or executor is appointed to represent the estate of a person deceased, after ther Probate Court has found or adjudged the fact of his-death, and put his affairs into a course of liquidation in the same manner. Such executors are liable to be sued in any court whatever; and even in cases where the State laws provide expressly that they shall not be sued, except in the court by which they are appointed, they are held liable to answer to the United States Circuit Court, notwithstanding such special exemption made by the State law. See case of Dupuy v. Bemiss, where this question is fully argued, (2 Annual Rep. 509); and case of Erwin v. Lowry, (7 Howard, 172-181,) reviewing and approving the doctrines, and even the reasonings, of the Louisiana court; and also 14 Peters’s Rep. 75, examining the same questions; all settling the doctrine that’ even where the representative of an estate is suable only in his own court by the State law, he may yet be sued in the United States Circuit Court, and there be held to answer, and compelled to pay a debt of the succession, because, in every case of a conflict between the laws made by Congress (in accordance with the Constitution of the United States) and the acts of a State Legislature, the State laws must yield. We believe, that, in Mississippi, other- courts besides the Circuit Court of Adams County, could have entertained jurisdiction of a suit against this trustee, in- his said capacity; and that even if it were shown that, by the positive requirement of the laws of the State of Mississippi, suit could have been brought against Pealé only in the Circuit Court of Adams County, which appointed him, we could, notwithstanding such requirement, sue Mr. Peale, as trustee', in the Circuit Court of the United States.
    We also submit to the court whether the third and eighth admissions of counsel, found on the seventh page.of the printed record, do not admit that the plaintiff in error, Mr. Peale, is the proper person to be sued for, and on- account of, the debts due by-the bank, because if, as admitted, the bank itself had ceased to exist, and Mr. Peale was in the actual possession of all its assets, and was its representative, he is the. only person who can be sued on account of the liabilities of the bank. We think the admissions themselves afford good ground for overruling the exception.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This suit was brought by the defendants in error against the plaintiff in the Circuit Court of the United States for the Eastern District of Louisiana.

The proceeding was by petition in the usual form of Louisiana practice. It states that the- plaintiff in error, in the capacity of trustee and assignee of the President, Directors, and Company of the Agricultural Bank of Mississippi, which was located, until the term of its dissolution at Natchez,in the said State, is indebted to the petitioners in the sum. of $34,000, upon the grounds set forth in the petition.

They state that they were the owners of two undivided third parts of a certain lot in Natchez, in the county of Adams, in the State of Mississippi, upon which stands the City Hotel; that they were unlawfully expelled from it by the Agricultural Bank; that they afterwards recovered back the possession by an action of ejectment, in the Circuit Court of the United jStates for the Southern District of Mississippi; and that they are entitled to the sum above mentioned, against the bank, for damages and mesne'proffts while the bank held them out of possession together with, the costs they incurred in the suit to recover it.

They further state, that by the decree of the Circuit Court of Adams County, a court of competent jurisdiction ••in the premises, the charter of the Agricultural Bank was declared forfeited, and the corporation dissolved; and that Peale, the plaintiff in error, was- appointed trustee and assignee of the bank, and is the sole legal répresentative of the corporation; and they aver; that by operation of law all the assets of the corporation are veste'd in him as assignee, and that he became legally liable to the creditors to the extent of the assets which may come to his hands; and that he has assets in his possession, sufficient.to pay ail the debts of the corporation. .

■ The plaintiff in error filed sundry exceptions..and an answer to this petition. His 2d- exception denies the jurisdiction of the court, upon the ground that, as' trustee for the bank, he is not amenable to any other court than the one that appointed him. As we think this exception decisive against* the jurisdiction of the Circuit Court of Louisiana, it is' not necessary in this opinion to set out the other exceptions, or to notice' the claims he set up by the way of answer and reconvention, if his exceptions were overruled.

There is an agreement between the counsel-of the respective parties, which, admits substantially the facts stated in the petition, as respects the possession and recovery of the hotél in the suit in ejectment, and the appointment of plaintiff in error as trustee -upon the forfeiture of the charter of the bank; and also that the defendants had presented' this claim' to the commissioners appointed in Mississippi to audit claims against the bank, and that they had refused to allow it. There are other admissions, in relation to the annual value of the lot and hotel, and the costs and expenses of the suit in' ejectment, and also in relation to other things which are not material to this decision, and need not therefore be particularly stated. The case proceeded; and at the hearing of the exceptions they were all overruled, and a decree was finally passed against Peale as trustee and representative of the President, Directors, and Com? pany of the Agricultural Bank, directing him to pay to the petitioners the sum of $20,058, with interest thereon at the rate of' five per cent, until paid — and that the petitioners have execution therefor, upon the property, assets, goods and chattels, rights and credits of the said President, Directors, and Company of the Agricultural- Bank of Mississippi, then in.the' hands of the said Peale, as trustee, or which might thereafter come to his hands.

It is to revise this judgment that' the present writ of error is brought.

- The power, duties, and responsibilities of the plaintiff in error, as trustee, are regulated by the'laws of Mississippi.

The act of 1843 makes it the duty of every district attorney in the State, whenever he has good reason to believe that any incorporated bank, located in his district, has done any thing that'would work a forfeiture of its. charter, to file an information against the .bank in the Circuit Court of the county in which it is situated; and if, upon the trial, the charter is adjudged to be forfeited, it is made the. duty of the court to appoint one or more trustees to take charge of its books and assets, and. to. collect the debts..and sell the property of the bank, and apply the proceeds in*the manner which may be directed .by law to the .payment of the debts due from, the corporation. And the.trustee is required .to give bond-and security, to be approved: by the court, far the faithful discharge of this. duty.

The act of'1846 contains. more detailed provisions. on this subject. Among others, it directs the trustee to return, under oath, to the court by which he is> appointed, an inventory of all the- property and evidences of debt which shall have come into his possession.; and is afterwards, under the direction .of the court, to sell the-Same at public auction, and render an account of the sale so made to the court.

The act of 1846 also directs, that at the term at Which judgment. of forfeiture is rendered, the court shall appoint three commissioners to audit claims against the corporation; and it is made their duty to. report their, proceedings to the court at the first term after the expiration, of twelve months allowed for the presentation of claims; at which time 'all exceptions, to the report are to be heard and determined, and the court thereupon required, to direct the distribution of the money in the hands- of the trustee, to be made in the order prescribed by the law.

It- was under these acts of, the legislature of Mississippi, that the. charter of the Agricultural Bank was declared forfeited, and the plaintiff in error appointed trustee. Commissioners also, it appears, were at the samé time appointéd to audit the accounts, Who rejected thiá claim. Upon their refusal to allow it, the defendants in error instituted these’ proceedings in the. Circuit Court' of the' United States'for the. Eastern District of Louisiana.

"We see no ground upon Which the jurisdiction of the court can be. sustained. The plaintiff in error held the assets of the bank as the agent and receiver of the Court of Adams County, and-subject to its order, and-was not authorized to dispose of the assets, or to pay any debts due from the bank, except by the order of the court. He had given a bond for the performance of this duty, and would be liable to an action, if he paid any. claim Without the-authority of, the court from which he received his appointment, and'tó'which he was accountable. The propérty? in legal contemplation, was in the custody of the court of. which he -was the officer, and had been placed there by the laws of Mississippi. And while it thus renfgined in the custody and possession of that court, awaiting its • order and- decision, no other court had a right, to; interfere with, it, or to wrest it from the hands of its agent,-"and thereby put it out. of his power to perforin his duty. The case falls within the.principle -decided by this court in Vaughn v. Northrop, (15 Pet. 1,) in which it was held, that an administrator could n,ot be sued in ane+her State for a debt due from his intestate, because he is bound to account for all the assets he receives, to the proper tribunals of the government, from which he derives his authority. And that decision was made in a case where the assets, by reason of which, the administrator was sought to be' charged, were received in the jurisdiction of the government in which the suit was brought against him, but in which he had not taken- out letters- of administration.

• The case of Williams v. Benedict, and others, (8 Howard, 107,) is still more in point. By a law of Mississippi, if.it appeared tó the Orphans’ Court, that the estate of a deceased per-, son was insolvent, it was made the duty, of -the court to direct the property to be sold by the executor or administrator, and to .appoint commissioners to audit the claims of creditors; and to distribute the proceeds of the property (after deducting the expenses of the last-sickness and funeral expenses) among the creditors, in proportion to the sum due to them respectively.

The appellant was the administrator of an intestate whose estate had been declared to be insolvent by the Orphans’ Court. But the appellees had obtained a judgment against the administrator in the District Court of the United States for the Northern District of Mississippi, before the adjudication of insolvency by the Orphans’ Court — and issued an execution, and laid it upon property upon which his judgment was a lien, in case the estate was not insolvent. And, upon a bill filed by the appellant to obtain an injunction staying proceedings upon this execution, the appellees insisted that the estate was not insolvent, but had .-been wasted by the administrator, and that the proceedings in the Orphans’ Court, under the law of Mississippi, were no bar to his recovery in a court of the United States. And the District Court was of that opinion, and dismissed the appellant’s bill. But' the decree, was reversed by this court upon the ground that the jurisdiction of. the Orpháhs’ Court had attached to the assets, and that they, were in gremio legis, and could not be seized by process from another court.

And-in the case of Wiswall v. Sampson’s Lessee, decided at the present term, the court held that where certain lands were in the hands of a receiver, appointed by the Chancery Court of Alabama, in a case pending before it, they could not be sold by the marshal upon process of execution, issuing out of the Circuit Court of the United States, for that district, although the judgment upon which the process issued, was a lien upon the land, and the execution was -laid before the receiver obtained actual possession of the property. In the case of Erwin v. Lowry, (7 Howard, 181,) referred to in' the argument of the counsel for the defendants in error, the proceedings in the Court' of the United States were merely to enforce a lien created b.y the testator in. his lifetime, and consequently could not interfere with the duties of the curator, or the authority of the State Court, under which he was acting, and to which he was bound to account.

It is suggested, also, in the 'argument, that the claim in reconvention madedn the answer, is a waiver of the exception to the jurisdiction; because the claim in reconvention necessarily admits the jurisdiction of the court. But the article in- the code, of-practice, and the ease referred to,.do not support the objection. The claim in reconvention is in express terms, made i-.t ease the exception to the jurisdiction is overruled, and not otherwise. It is made conditionally, the party at the same time denying the jurisdiction of the court-in the matter, in controversy.

Moreover, the facts stated in the petition of the defendants in error, show that the Circuit Court of Louisiana had no jurisdiction. And where that is the case, the general rule in all legal proceedings is, that the defendant may avail himself of the objection in any stage of the proceedings. We see nothing in the code' of practice that leads us to suppose that a different rule prevails in the courts of Louisiana. And- if it does., yet the-exception to the jurisdiction wa's- in this case pleaded in limine. when the plaintiff in error appeared to the suit, and the conditional claim in reconvention cannot, by any just construction of its.terms, be held to be a waiver of the plea.

The judgment of the Circuit, Court must therefore be reversed, and a mandate issued directing the judgment to be entered for the plaintiff in error.

Order.

This cause came on to be heard on.the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is how 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 bé, and the same is hereby, remanded to the said Circuit Court, with directions to enter, judgment in favor óf the plaintiff in error.