author: Mr. Justice NELSON

text:
    Jacob Hugg and John M. Bandel, Plaintiffs, v. The Augusta Insurance and Banking Company of the City of Augusta.
    In an insurance upon freight, there is no total loss of a memorandum article as long as the goods have not lost their.original character, but remain in specie, and in that condition are capable of being shipped to their destined port, no matter what may be the extent of the damage.
    If, however, the articles are not capable of being carried, in specie, to the port of destination, arising from danger to the health of the crew or to the safety of the vessel; or the public authorities at the port of distress order the articles to be thrown overboard, from fear of disease, there would be a total loss.
    In construing the contract of insurance upon freight, the interest of the insured, or of the underwriters of the cargo, is not considered. Therefore, if the vessel is in a condition to carry on the cargo to the port of destination, or another vessel can be procured for that purpose, it is the duty of the owner of the vessel to carry it on, • although it may be for the interest of the insured and insurers of the cargo to sell it at the port of distress.
    If so sold, the insured cannot recover for a total loss of freight.
    But although it is the duty of the owner of the vessel, either to repair his own or to procure another at the port of distress to carry on the cargo, yet, if it should he made to appear that the repairs or procurement of another vessel 'would necessarily produce such a retardation of the voyage as would, in all probability, occasion a destruction of the article, in specie, before it could arrive at the port of destination, or, from its damaged condition, it could not be reshipped in time, consistently with the health of the crew or safety of the vessel, or would not be in a fit condition, from pestilential effluvia or otherwise, to be carried on, it then became the duty of the master to sell the goods for the benefit of whom it might concern.
    A policy of insurance upon “freight of the bark Margaret Hugg, at and from Baltimore to Rio Janeiro and back to Havana or Matanzas, or a port in the United States, to the amount of $ 5,000, upon all lawful goods, &c., beginning the adventure upon the said freight from and immediately following the lading thereof aforesaid at Baltimore, and continuing the same until the said goods, wares, and merchandise shall be safely landed at the port aforesaid,” upon which a greater premium was paid than was usual for the outward voyage alone, must not be construed as a policy upon the round voyage.
    The insurers were, therefore, n.ot entitled to a deduction for the outward freight.
    This case came up, on a certificate of division, from the Circuit Court- of the United States for the District of Maryland.
    The Reporter finds the following statement prefixed to the opinion of the court, as .delivered by Mr. Justice Nelson.
    This is an action upon a policy of insurance on the freight of the barlf Margaret Hugg, at and from Baltimore to Rio Janeiro, and back to Havana or Matanzas, with liberty to touch and stay at any intermediate port in case of stress of weather, or for the purpose of transacting business. The amount $ 5,000; premium, $> 158.25.
    The policy contained the usual memorandum, enumerating various articles warranted freeTrom average, and all others that were perishable in their own nature. *
    About four hundred tons of jerked beef were shipped on board the vessel at Montevideo, which were to be delivered in good order at the port <?f Matanzas or Havana to the consignees, they paying freight. The bill of lading was signed the 25th of April, 1842.
    The. vessel sailed from Montevideo on the 29th of April, and, after being out some forty-seven days, encountered a storm, and was driven on Gingerbread Ground, where she received considerable damage; the rudder was broken and unshipped, and as the extent of the damage could not be ascertained, it was deemed prudent, on consultation with the captain of a wrecking vessel and Bahama pilot, to go into Nassau for the purpose of a survey and repairs. The wind was fair for that port, but strong ahead in the direction of Matanza^. The vessel was taken in charge of one of the wreckers, and arrived at Nassau on the second day, about the-20th of June, and grounded on the bar while entering the harbour, and under the charge of the king’s pilot, and sustained a good deal additional damage.
    A part of the beef had been thrown overboard to lighten the vessel while on the Gingerbread' Ground; and a much larger quantity while on the bar at Nassau. She had leaked while on the ground in the former place, so that it was necessary to work the pumps every half hour; and at the latter, there was seven or eight feet of water in the hold, with some fourteen men at the pumps.
    The beef was so much damaged by the sea-water that the board of health at Nassau refused to allow but about one hundred and fifty tons to be landed. The rest was ordered to be carried outside the bar., and thrown into the sea, for fear-of disease.; it was wet and very much heated, some of it so changed as to become green, and all emitting an offensive stench. • The portion allowed to be landed was wet and heated, and not in a fit condition to be shipped; and the board of health recommended to the authorities, that it' should be. removed as soon as conveniently could be. <

    The vessel was surveyed after the cargo was discharged, and it was found that the rudder was entirely broken oif, the forefoot gone, and the keel greatly shattered and damaged; and it appears to be conceded that she could not have been repaired at that port so as to have carried on the cargo, and that, if she could, it would have cost more than half her value. She was repaired sufficiently to bring her home in ballast. It also appears that there was no vessel in port that could be procured to forward on the remaining cargo, even if it had been in a condition to be' shipped.
    The salvors libelled the vessel and cargo for salvage services in the Vice-Admiralty Court of the Bahamas on the 30th of June, 1842, to which the master put in an answer on the 7th of July, insisting that the libellants were entitled to compensation for pilotage only, and not for salvage.
    The court, on the 18th of July, decreed $ 2,100 salvage to the libellants, for services rendered to the vessel and cargo. Appraisers of the vessel and cargo taken on shore had been previously appointed; and, on an examination of the cargo, it was found to be so much damaged, and in such a condition, that they advised an immediate sale, as it was deteriorating in value daily.
    The master assented to a sale, aceordingly, which was ordered by the court on his application on the 1st of July. The nett proceeds amounted to $2,664.92. The time occupied in .an ordinary voyage from Nassau to Matanzas.is three days, and to. Baltimore, ten.
    It was proved by several masters of vessels, that the navigation at the place where the Margaret Hugg first grounded, and was visited by the pilots, was very hazardous, and that, under similar circumstances, they would have considered it their duty to have carried their vessel into the harbour at Nassau.
    The regular premium for insurance of freight of the cargo covered by the policy for the outward voyage was about one ánd one eighth per cent.
    Upon this state of facts appearing at- the trial, the following questions were raised, and presented to the court, viz.: —
    1. It being admitted that the loss is to be adjusted according to the terms of the Baltimore Insurance Company, if the jury find that jerked beef was a perishable article within the meaning of the policy, are • the defendants liable as for a total loss of freight, unless the entire .'cargo was so totally destroyed that no part of it could have been carried to the port of destination oven in a deteriorated and valueless condition ?
    2. If the jury find that, from the condition of that portion of the cargo sold at Nassau (occasioned by the disasters stated in the testimony), it was for the interest of the insured and insurers upon the cargo that it should be so sold., and not transported to' Matanzas, is the plaintiff entitled to recover for a total loss of freight, provided his own vessel could have been repaired in a reasonable time, so as to perform the voyage in safety, or he could have procured another vessel, and have transmitted to the port of destination, in its deteriorated state, the portion sold at Nassau ? And
    3. Assuming that the plaintiff is .entitled'to recover, is the policy on the amount mentioned for one entire voyage round, from Baltimore out and home again ? and áre the. defendants entitled to deduct from the amount insured the freight earned in the voyage from Baltimore to Rio upon the outward'cargo ?

      The cause was argued by Mr. Mayer .and Mr. Nelson, for the plaintiffs, and Mr. David Stewart and Mr. Johnson, for the defendants. The following is a' very brief sketch of the respective arguments.

      Mr. Mdyer, for the plaintiffs.
    The premium was double what would. have been demanded for half the voyage. Some of the beef was thrown out as spoiled, the rest landed, somewhat injured. Then came a libel for salvage, and a decree for it. No funds existing to pay it or make the necessary' repairs with, a sale was ordered. We abandoned, and now claim for a total loss. The policy is a blank cargo policy, filled up with an insurance on freight. Does the claim arise where the articles are not entirely lost ? In England the courts of Common Pleas and King’s Bench' have decided differently. 3 Bos. & Pul. 474; Marshall on Ins. 227, 565; 2 Maulé & §elw. 247; — that the articles, thouj h not lost, might be deemed extinct. 32 Com. Law Rep. 115; 1 Wheaton, 219, 225, — case of memorandum articles; 2 Phillips on Insurance, 485, — all the decisions cited; 6 Cowen, 270.
    The law was. settled in England by the case of Roux v.. Salvador, 3 Bing. N." C. 266; S. C., 1 Bing. 526; and. there is nothing contradictory in the decisions of this court. The case in 1 Wheaton depended on particular circumstances. If the beef had to be thrown overboard for the sake of health, it' could not be considered any longer as beef for all commercial • purposes. If the voyage is broken up, there is an end-to freight; and it was broken up here by the perils insured against. There is no difference between memorandum and other articles', when a total loss ensues. Marshall' on Ins. 585; 12 East, 304; 15 East, 565; 6 Mass. 119, 318, where the, cases are cited; 1 Wheat. 219.
    The vis major of the claim for salvage broke up the voyage and destroyed, the property. The beef was in a fermenting state. The condition of the vessel was hopeless. As to the effect of vis major, 7 Com. Law Rep. 202.
    Second question certified.
    This involves the discretion of .the captain. The owner of the vessel is bound by his contract to carry the goods. If the perils of the sea require a transshipment, it is his privilege and duty to make it. But if there be a difficulty in obtaining a vessel, the master is not bound to pay an excessive freight, 7 East, 44; 7 Com. Law Rep. 364, same as 3 Brod. & Bing. 97; 36 Com.'Law Rep. 156, same as 9 Adolph. & Ellis, 314 ; 4 Johns. .Ch *225; 7 Cowen, 584; 4 Wend. 54; 12 Johns. 107; Abbott on S ppp. 369,- 461.

      But if the court should think that it was' the duty of the master to transship, then I say that, if there was ground of abandonment from vis major, the captain became, the agent of the insurers, and. they must be-responsible for his errors. 9 Johns. 2.8. If half the property is lost, it is not the duty of the master to transship.
    The captain is the agent of the adventure, and if the jury justify him as to the vessel or cargo, his acts bind all parties. 5 Peters, 604; 1 Johns."406. The exigency would have justified a prudent man in acting as he did, if there had been no insurance. He is to act.for the general good, mindful of the owners' and insurers. 3 Moore, 133, quoted in 2 Phillips, 268. Was hot this a judicial sale? The judge ordered it, not upon the petition of the master, but as an order of the court. The opposite Darty appeared, and did not object to it. 1 Wash. C. C. 530.
    The third question relates to the quantum of recovery. The outward cargo belonged to the owners of the vessel, and .thus,- in fact, no freight was earned. But we are charged with a constructive freight. ■ Suppose the owner could earn freight from himself, this is an open policy, and value must be proved. There is no evidence to show that the value of the outward freight was just half of the whole sum insured. It could-not be a round voyage, because the owners sent out an adventure, and only , intended to earn freight on the return. In an open policy, we have only to show- that we had that amount of interest when'the loss occurred. We paid .a premium, double of what we would have been charged for the outward voyage alone. ■ It could not, therefore, have-been intended as a round voyage. 3 Caines, 16; 7 Gill & Johns. ¡293; 12 Wheat, 383; 3 Wend. 283; 2 Wash. C. C. 89,' 1 Rawle, 97; 33 Com; Law-Rep. 124, or 3 Barn. & Adolph. 198; 4 Peck, 429; 3 Com. Law Rep. 480 ; 2 Starkie, 573.

      Mr. Stewart, for. the defendants.
    It' is proper that some • omissions of the opposite counsel should be supplied. In the first -place, the captain knew that he was insured; the answer to the libel says so. In the next place,' he could have proséCuted his voyage. The answer to the libel says, that “ without any assistance from Demeritt and his party, he could have got the bark clear of the Gingerbread Ground, and could, without any other than the ordinary dangers of the sea, have proceeded in the prosecution of their voyage.” In the third place, the condition of the cargo was not so bad. The report of the board of health, made on the 29th of June, 1842, says,-that “the quantity of beef-which is housed in the store appears to the hoard to be in a sound condition, and fit for the purpose for which it was cured.” This was made on the 29th. On the 30th, the captain petitioned for a sale, which took place on the 1st of July. In the affidayit to support the motion for a sale, the captain says “ he had intended, previous to the commencement of the. action, that the sale of such beef should take place in the early part of the present week.” What became of the cargo? In fact, it went to the very port of destination. The captain says, in his deposition, that Adderly “ bought the beef with the intention of shipping it to Matanzas.” Strobel, the supercargo, says, “The vessel had no. means of her own to make the repairs with, but Mr. Starr, the agent of the underwriters, offered to advance money for repairs upon bottomry.” The libel for salvage was contested, and limited to pilotage, and yet a sale took place.
    As to the first question certified. The object of the policy is to protect underwriters by excluding small losses. ' Partial losses, therefore, are not recoverable, as long as part of the cargo remains not liable at all. 3 Bos. <fc Pul. 478, does not impugn this doctrine, because the articles were thrown overboard from necessity.
    In Roux v. Salvador there was a special verdict, in which the jury found that the hides would Have lost their character from putrefaction. The court relied upon this. Of course there was a. total loss. The counsel then referred to the following cases. Park, 1.91, 185; 2 Maulé & Selw. 371; 2 Com. Law Rep. 55, or 7 Taunton, 154; 4 Martin, N. S. 640; 16 East, 214; 1 Caines, 196; 3 Caines, 108; 4 Johns. 139; 4 Wendell, 33; 7 Cranch, 415; 8 Cranch, 39; 3 Wash. C. C. 356; 1 Wheat. 59; 3 Mason, 429. From the time of 1 Wheaton to 3 Mason, the question was not mooted, and when it was, it was only upon tlie authority of 15 East. 5 Meeson & Welsby explains 15 East to have bqen an insurance upon each parcel. But here a part of the beef was good, and sold for fifty per cent, of its cost. From this loss our contract exempts us. . The assured warrant that they will not charge, except for general average. The vessel Was within • three days’ sail of Matanzas, and if the jury and that beef was a perishable article, we cannot be liable.
    The second question assumes that the vessel could have been repaired, or that another vessel might have been obtained. Could the act of the captain give the plaintiffs a right to recover in this action ? The opposite counsel wish to make the cargo a test of the rule respecting freight; but the cargo is nothing to us. The agency of thé captain binds all parties who are within the contract of indemnity, but hot those who are beyond it. . There was no necessity for a sale, if another vessel could have been had: 1 Johns. 205; 3 Johns: 321; 9 Johns. 21; 2 Pick. 104; 23 Pick. 405; 10 Com. Law Rep. 366. These cases show that, if .the captain could transship, it was his duty to carry on the cargo. The -.expense is nothing to us. It might have cost half the freight. - 4 Wendell, 54.
    On the third question, Mr. Stewart cited and'commented upon 20 Com. Law Rep. 342; 36 Coni. Law Rep. 216.

      Mr. Johnson, on the same side.
    As to the first question. Certain articles are inserted in the memorandum, to, guard ' against frauds upon the underwriters, because no one could tell whether or not the losses arose from the perils insured against. For example, it is impossible to say how far the injury to the beef proceeded from the perils of the sea, or whether or not it would have been putrid, if there had been no storms. Therefore we only insured against a total loss. The question' assumes that the master could have carried on the beef in his own or some other vessel, —in a valueless condition, it is true.' But does this make lis liable ? We may lay down these two propositions : —
    - 1st. The case cited from Wheaton establishes, that, if a vessel arrives at her port, the underwriters are not responsible, unless in case of general average.
    2d. Where the vessel could go- on, the same rule must be applied as if she- had actually gone on. Otherwise, it is in the power of the captain to convert no loss into a total loss. The underwriters are placed completely in his power. In this case, if the vessel had pursued her voyage, the underwriters would not have been responsible. Originally,' the. doctrine was more extensive upon our side than now, because it was held that, if any article-existed at all, the insurers were, discharged. The case in 3 Bingham only corrects this in its vicious extent ; it only'makes the underwriters free, if the cargo arrives consisting of the same articles which composed it before,— that is, if flour is still flour, hides are still hides, &c. The question of value is left out of view altogether. The question before us is, not whether the jury must find that the beef had ceased to be beef or not, but only speaks of its value. 1 Wheaton, 219, decides this. It says that the consideration of quantity or value is of no consequence. If, therefore, ever so .small a quantity of the article arrives, or ever so much injured, the underwriters are not responsible. The master’s duty was to go on. The case of Roux v. Salvador does not justify the sale at Nassau. The hides in that case would have lost their character as hides.
    As to1 the second question. This assumes that the master could have repaired his vessel. . The question of cost is not involved. Was it not his duty to send on the cargo ? If the other side are fight, it is always in the power of the assured to hind us by stopping short, when we would not have been responsible if the cargo had been, carried on. The agency of the mastér.onl'y begins when the liability of the underwriters is absolutely fixed. The law is settled in England, New York, Louisiana, and in this court. If the cargo remains, specifically, the- underwriters • cannot be held responsible for a total loss upon memorandum articles. 3 Caines,. 108; 1 Johns. 305; 3 Johhs. 328; 14 Johns. 139, 143, 144, 145 ; 23 Peck, 405-409, 412, 414-416; 4 Barn. & Ores. 366; 3 Kent’s Com. 210, .212, 213; 36 Com. Law Rep. 157, or 9 Adolph. & Ellis, 314, cites the above from Kent, with approbation ; 3 Mason, 429, 440; 16 East, 214, overrules 5 East.
    The owner of the cargo is bound to phy freight if the cargo arrives, no matter how much injured it may be. On memorandum articles, the underwriters are not responsible for any thing but a total loss. The policy contains such a clause, and no one, has a right to strike it out. But the question supposes a discretion to exist in the master, to act for the benefit of all. parties. But how can he do so when their interests are contradictory ?• If he could have gone on, then a loss of freight has occurred, not from the perils of the sea, but from the conduct of the master. If he has acted for the benefit of the owners of the cargo, that is nothing to us. We only insured that freight should be earned, not that it should be actually received. It might have been for the interest of the owner of the- ship and the owner of the cargo to terminate the voyage at Nassau.. Bút it was not for our interest, and we cannot be bound by the act.
    Third question. - Was it a round voyage ? We rely on 2 Starkie, 573 • 3 Com. Law Rep. 408.

      Mr. Nelson, for the plaintiffs, in reply and conclusion.
    I admit that, if the loss was not .total, we'cannot recovér. But the proposition is a surprising one, which asserts that an article can be totally valueless in point of fact, and yet not be a total loss in point of law. The object' of all'contracts of insurance is to preserve property, ahd here its value is admitted to .be entirely destroyed. There , is no adjudged case which sanctions such a doctrine. I speak not of the language used by • courts, but-of-points decided. If. has never been before this court. We do' not assert that a loss’ of a part can he considered a total loss. In” 7 Johns. Ch. 415, the loss of a part of the hides was held to be a partial loss. This is settled law in the United States. Massachusetts has followed it.' But it is not our question. In 8 Cranch, 47, it is said that nothing short of physical extinction or extinction in value will justify an abandonment of memorandum articles; but it is not settled whether extinction in value will be sufficient. .1 Wheaton, 219, is not like our case. The vessel there did not put into any port of distress, but arrived at her destination.
    In the New York cases, the language of the judges is strong, but the cases themselves are distinguishable from ours. (Mr. Nelson here remarked upon the case of Griswold v. New York Ius. Co., in 1 Johnson,’and again reported in 3 Johnson, and also upon the case in 14 Johnson.) .
    These New York cases rest upon a dictum of Lord Mansfield, which has.béen overruled again and. again. (Mr. Nelson then examined all the cases in chronological order, viz.: — Park on Insurance, 253; same book, 247 ; Cocking v. Fraser, 4. Doug. 295; 7 T. R. 218, — where .the first doubt of Cocking v. Fraser was expressed by Lord Kenyon, Park on Ins. 252; Dyson v. Rowcroft, 3 Bos. & Pul. 474, - — where it is said that Cocking v. Fraser is much shaken; 15 East; 16 East, 214; 17 Com. Law Rep. 408, 409, or 9 Barn. <fc Cres. 411; and the case of Roux v. Salvador, which came up twice, 27 Com. Law Rep. 481 or 1 Bing. N. C. 526, and 32. Com. Layr Rep. 115; 5 Maulé & Selw. 447.)
    The English authorities appear to settle the point, that, if the value of an article is destroyed, it is a total loss. This opinion is fortified by Stevens and Benecke on Average, p. 435.
    The New York cases rely upon Cocking v. Fraser. There is a learned argument on the subject in 14 'Conn. Rep. 47.
    As to the second question. It is, that; assuming a power to transship when the"articles were damaged, whether an insurance upon freight can be recovered, it being granted that the cargo was insured and that it was for the interest of all parties to sell. The opposite counsel says that 23 Pickering closes this case. But I think not. (Mr. Nelson commented on the authority.) The question to be settled is, What ought the master to do •? The authorities read by Mr. Mayer have not been answered. They show that where the master is in the double situation of protector of the ship and cargo, he must act with a sound discretion. Another point open upon the record is, that the vessel was in the hands of the law.- The vessel-entered the port on the 22d of June, and was sold on the 1st of July. . The goods were taken from the control of thé master and placed in custo--dy- of the law. The sale was a judicial one, and .the captain only did what his duty required.
    As to the third question. This very point is decided in 12 Wheat. 383.
   Mr. Justice NELSON

delivered the opinion of the court, after reading the statement prefixed to this report.

The first point 'certified, upon the assumptions stated, involves the question, whether the underwriter of a policy upon freight of goods warranted free from average is liable, as for a total loss, unless the goods be actually destroyed by one of the perils insured against, so as to be incapable of shipment to the port of destination; or whether a total loss may result at the port of distress from the goods having been so much damaged, that, if sent on, they would become of no value at the time they reached the'»port of destination'; and hence, instead of being sent on, may be sold for the benefit of whom it may concern.

The contract of insurance upon freight is, that the goods shall arrive at the port of delivery notwithstanding the perils insured against; and that, if they fail thus, to arrive, and the owner is thereby unable to- earn his freight, the underwriter will make it good.

It does not undertake that the goods shall be delivered in a sound or merchantable state, or that the vessel in which they are shipped shall be safe. against the dangers of the. sea, but 'that it shall be in the power of the insured to earn his freight; that is, that the perils, insured against shall. not prevent the ship from earning full freight for the assured in that voyage. If the ship and cargo remain, notwithstanding the disasters, in a condition to continue the voyage, it is in his power to earn freight, and he is bound to proceed ; but if damage happens to either, and the voyage is broken up, so that no freight can be earned, the owner is entitled to recover, as for a total or partial loss, according as he may or may mot have earned -freight pro rata itineris. ■

If the damage happens to the vessel, and that can be repaired at the port of distress in a-reasonable time,-and at a reasonable expense, it is the duty of the owner to make the repairs, and to continue the voyage and earn his freight; and, on the other hand, if the damage happens to the goods, and the ship be in a capacity to proceed, or, if disabled, another can be procured upon reasonable terms, the owner of the ship will still be entitled to perform the voyage and recover his freight, unless the goods have been totally destroyed. In every case, before he can recover of the underwriter, he must show that he was prevented by one of the perils insured against from completing the voyage, and, for- that reason, had failed to entitle himself to freight from the shippers.

The first point certified to us- assumes that the ship was capable of carrying on the cargo to the port of delivery notwithstanding the injuries received; and the only question is, whether the cargo was so much damaged, and in such a con-: dition, as to have dispensed with that duty.

In the case of memorandum articles, the exception of particular average excludes a constructive total loss; and, of course, the principle which allows an-abandonment where the loss exceeds half the value does not apply. There must be an actual • total loss of-the. goods. The object of the clause is to protect the underwriter from any partial loss on; articles of a perishable nature, which are.liable to inherent, decay and damage, independently of the damage occasioned by the perils insured against; and where it would, be difficult, if not impossible, to distinguish between them. ' In case of a total loss, consequent upon the happening of one of - the perils, the whole damage - is' presumed to have arisen' from that cause, and. thus all dispute is avoided as to the origin or nature of the loss.

What-constitutes a total loss of a memorandum article has ■ been'the subject of frequent, discussion, both in the courts of England and this country, and in the former of some diversity of opinión-; but, in most of the cases, the decisions have been uniform, and the principle governing the question regarded as •settled; and that is, ;so long as the ■ goods have not lost their original character, but remain in specie, and iii that-condition are capable of being- shipped to the destined port, there cannot be a total loss of the article, whatever may be the extent of the damage, so as to subject the underwriter. The loss is but partial. The cases are numerous on the sübject, and will be found collected in Park on Marine Ins., ch. 6, subd. 13, p. 247; 2 Phillips on Ins., ch. 18, p. 483; and 3 Kent's Com. 295, 296. It would be- useless to refer more particularly to them.

The only doubt that has been expressed-in respect to the soundness of this rule is, whether a destruction in value for all the purposes of the -adventure, so that the objects of the voyage were no longer worth pursuing, should not be regarded as a- total loss within the memorandum clause, as well, as a destruction in specie. . But although this has been suggested in several cases in England as a proper qualification, and as coming within the obligation of the underwriter, there is ho case to be found in which’the suggestion has received the sanction of judicial authority.

In this country the rule has been uniform, that there must-be a destruction .of the article in specie, as will be seen by a reference to the following authorities. Maggrath v. Church, 1 Caines, 196; Neilson v. Col. Ins. Co., 3 ib. 108; Le Roy v. Gouverneur, 1 Johns. Cas. 226; Griswold v. New York Ins. Co., 1 Johns. 205, Livingston, J.; S. C., 3 ib. 321; Saltus v. Ocean Ins. Co., 14 ib. 138; Whitney v. N. Y. Firemen Ins. Co., 18 ib. 208; Brooke v. Louis. State Ins. Co., 4 Martin, N. S. 640; S. C., 5 ib. 530; Morean v. U. S. Ins. Co., 1 Wheat. 219; McGaw v. Ocean Ins. Co., 23 Pick. 405; 3 Sumner, 544; 1 Story, 342.

Whether the test of liability is made to depend upon the destruction in specie, or in value, would, we are inclined to think, as a ■ general rule, make practically very little, if any, difference; for while the goods remain in specie, and are capable of being carried'on in.that-condition to the destined port, it will rarely happen, that on their arrival they.will be of no value to the owner or consignee. The proposition assumes a complete destruction in value, otherwise the uncertainty attending it would be an insuperable objection; ■ and, in that view, it may be a question even if the degree of deterioration would not be greater to constitute a total loss than is required under the present rule.

The rule as settled seems preferable, for its certainty and simplicity, and as affording the best security to the underwriter against the strong temptation that may frequently exist, on the part of the master and shipper, to convert a partial into, a total loss.

Mr. Park, in speaking of the case of Cocking v. Fraser (4 Doug. 295), a leading one in the establishment of the rule, observes that the wisdom of the decision is apparent; for, otherwise, it would be a constant temptation to' the assured, whenever a cargo of this^description Was likely to reach the port of destination in an unsound state, to throw the loss upon the underwriters, by voluntarily giving up. the further' prosecution of the voyage, to which't'hey were not liable by the terms of the memorandum.-, (1 Park, 249.)

The rule, it will be observed, as we have stated it, contemplates the arriVal of the goods, or some part of them, in specie, at the' port of delivery; or that they were capable of being shipped to that port in specie. And hence, if the commodity be damaged so that it would not' be allowed to remain on 'board consistently with the health of the crew or safety of the vessel, or if permission be refused to land the same by the public authorities at the port óf distress for fear of disease, and, for these and like causes, should, from necessity,- be destroyed by being thrown overboard, notwithstanding the-article existed in specie, and might have been carried on in that condition, there would still'be a total loss within the meaning of the policy. In the cases supposed, it is as effectually destroyed.by a peril insured against, as if it had gone to the bottom of the sea from the wreck of the ship. The same result follows, also, if the goods be so much damaged as to be incapable of reaching the port of destination in their original character.

These principles are either stated in, of are' fairly deducible from, several cases,' but especially from the cases of Dyson v. Rowcroft, 3 Bos. & Pul. 474, and Roux v. Salvador, 3 Bing. N. C.266, and S. C., 1 Bing. N. C. 526.

In Róux v. Salvador, in the Exchequer, it was observed ihat the argument rested upon the position, that, if, at the termination of the risk, the goods remained in specie, however damaged, there was not a total loss ,* and it was admitted. that the position might be just, if, by the termination of the risk, was meant the arrival of the goods at their place 'of destination ; but that there was a fallacy in applying those words to the termination of the adventure before that period by a peril of the sea, as the 'object of the policy is to obtain an indemnity for any loss that the assured might sustain by the goods being prevented by' the perils of the sea from arriving in safety at the port of destination.

It. was also remarked, .that, if the goods once damaged by the perils of the sea, and' necessarily landed before the termination of the voyage, were, by reason of that damage, in such a state, though the species be not .utterly destroyed, that they could not with safety be reshipped into the same or any other vessel, —> or if it was certain that before the termination of the original voyage the species itself would disappear,;— in any of these' cases, the circumstance of their existence in specie at the forced termination of the risk was of no importance.

The jury had found in that case, that the hides' were so far damaged by a peril of the sea, that they never could have ar-. rived at the port of destination in the form of hides; and as the destruction was not complete when they were taken out of the vessel at the port of distress, they became, in their then condition, a salvage for the benefit of the party who was to sustain the loss.

In respect to the first point, therefore, the court direct that it be certified to the Circuit Court, that, if the jury find, that the jerked beef was a perishable article within the meaning of the policy, the defendant is not liable as for a total loss of the freight, unless it appears that there was a destruction in specie of the entire cargo, so that it had lost its original character at Nassau, the port of distress, or that a total destruction would have been inevitable from the damage received, if it had been reshipped before it could have arrived at Matanzas, the port of destination.

The second point certified assumes that the vessel, notwithstanding the disaster, was in a condition to carry on the .cargo,

or that another could be procured, and the question is, whether •the .plaintiff is entitled to- recover, as for a total loss of freight, if it appeáred that it was for the interest of the insured and insurer of the cargo, on account of the damaged condition of the portion sold, that .it should have been sold, and not carried on. to Matanzas, the port of delivery.

-Many of the considerations stated in our examination of the first point certified have a direct application to this one ; as it there appears that the interest of the insured, or of the under' writer of the cargo, is not- taken into the account, nor.in. any way regarded in determining' whether or not a total loss of the freight has happened from any of the perils insured against, brit-whether there has been a. destruction of the entire cargo' in specie, or such damage received as would inevitably prevent .-the arrival, of any portion of it in specie at the destined port.

The interest of the owner of the cargo may frequently be adverse to that of the owner of the ship; for although the goods remain in specie, arid in that condition capable of being carried on, it may be for the interest of the owner, or of the insurer of the cargo, to have it sold in its then damaged state at the intermediate port, instead of taking the risk of further deterioration. But, in that case, the owner, or those representing' him, must act upon their own responsibility;’ for, if he elects to receive the goods voluntarily at a place short of the port of destination, he is responsible, for the freight. The loss cannot be total, or partial at his will, or as his interest may dictate.

It was said, in Griswold v. New York Ins. Co. (which was an action on á policy on freight), that whether it would have been wise or foolish in the shipper to have sent on the flour in the condition it- was in was á question not to be put to the plaintiffs. It was none of their concern. The risk of the value of the cargo at the port of delivery lay with the owners of the cargo. All that the plaintiffs had to do by their contract was to provide the means to take on the cargo, by repairing their ship or procuring another.

Other considerations may arise as between the owner and insurer of the cargo, but ,it is not important now tó go into them.

On looking into the facts in this case, it will be seen that the portion of the beef landed at Nassau, and sold, was wet and heated; and that the board of. health had recommended to the authorities, that it should be removed as soon as it conveniently coúld be without top great a sacrifice of the property. It is obvious, therefore, that the perishable condition of the article must be taken into consideration in deciding upon the obligation of the master, in.the emergency, to repair his vessel, or to procure another, for the purpose of sending it on to the port of delivery. ' If it should be made to appear that the repairs or procurement of another vessel would necessarily produce such a retardation of the voyage as would, in all probability, occasion a destruction of the article in specie before it could arrive at the port of destination, or from its damaged condition could not be reshipped in time consistently with the health of the crew, or safety, of the vessel, or would not be in a fit condition from pestilential effluvia, or otherwise, to be carried on, it then was the duty of the master to sell the goods for the benefit of whom it might concern.

The cargo -being in a perishable condition, the extent of the repairs, or difficulty of procuring, another • vessel, and consequent delay attending the same, are material,considerations influencing his judgment in deciding upon the necessity of a sale ; for it would be unreasonable' to require him to subject his owner to this expense, when, at the same time, a strong probability'existed that the cargo would not be in a condition to be reshipped. 18 Johns. 208; 6 Cow. 270; 1 Bing. N. C. 526; 3 ib. 266; 3 Brod. & Bing. 97; S. C. 6 Moore, 288; 6 Taunt. 383; 1 Holt, 48 ; 3 Kent’s Com. 212, 213; 2 Phillips, 331 et seq.

The quantity and value of the portion saved are also material circumstances to he considered In exercising a sound discretion in respect to the extent of the repairs required to be made, or of expense in the procurement of another vessel, with a. view to the earning of salvage for the benefit of the underwriter on freight. The owner of the cargo is liable for any increased freight arising from the hire of another vessel; and linless it can be procured at an expense not exceeding the amount of the freight to be earned by competing, the voyage, the underwriter on freight has no right to insist upon this duty of the master. Beyond this, it becomes a question between him and the owner or underwriter of the cargo; 3 Kent’s Com. 212; Shipton v. Thornton, 9 Adolph. & Ellis, 314; Searle v. Scovel, 4 John's. Ch. 218; American Ins. Co. v. Center, 4 Wend. 45; 2 Phillips, 216.

In respect to the second question, therefore, we direct it to be certified to the Circuit Court, if the jury find that, from the condition of that portion of the cargo sold at Nassau, it was for the interest of the insured and insurers of the cargo that it should have been so sold, and not transported to Matanzas, still, the -plaintiffs are not entitled to recover as for a total loss of freight, provided their own vessel could have been repaired in a reasonable time, and at a reasonable expense, so as to perform the voyage, or they could have procured another at Nassau, the port of distress, and have transshipped the portion sold in specie .to the port of destination.

The third question is, assuming that the plaintiffs are entitled to recover, is the policy on the amount mentioned for one entire voyage round from Baltimore out, and home again; and are the defendants entitled to deduct from the amount insured the freight earned in the voyage from Baltimore to Rio upon the outward cargo.

The policy provides, that the defendants, in consideration of $ 156.25, .agree to insure the plaintiffs, &c., on freight of the bark Margaret. Hugg, at and from Baltimore to Rio Janeiro and back to Havana or Matanzas, or a port iff the United States, &c., to the amount of $ 5,000 upon all kinds of lawful goods, &c., beginning the adventure upon the said freight ■from and immediately following the lading thereof aforesaid at Baltimore, and continuing the same until the said- goods, wares, and merchandise shall be safely landed at the port aforesaid.

It is insisted, on the part of the defendants, that the voyage insured is one entire voyage from Baltimore out to Rio Janeiro, and then to Matanzas, or home; and that they are entitled tó a deduction of the freight earned on the outward cargo, from Baltimore to Rio.

The court are of opinion, that, upon a true construction of the polity ihe insurance was upon every .successive cargo that, was taken on board, in the course of the voyage out and home, and is to be applied to the freight at risk at any time, whether on the outward or homeward passage. This was the construction given to these terms - in a freight policy in Davy v. Hallett, 3 Caines, 16, and The Columbian Ins. Co. v. Catlet, 12 Wheat. 383. The insurance was regarded as, in effect, covering freight upon separate voyages out and home, to the amount of the valuation; and in the former casé the payment of. double premium was deemed a pretty sure index to the intent of the parties .that the policy should attach on the outward or homeward freight according to events, and was tó bé valid and operative as long as there was aliment to keep it alive. All the considerations urged in. favor of this construction in the cases referred to- apply with equal force to the policy in question.

The-cíóurt direct, therefore, that it be certified to the Circuit Court, that, assuming the plaintiffs are entitled to recover, the defendants .are not entitled to deduct from the insured the freight earned on the voyage' from Baltimore to Rio upon the outward cargo, as the policy is not for one entire voyage" round from Baltimore out, and home.

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 Maryland, and on the points and questions on which the judges óf the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act.of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is .the ■opinion of this court, — 1st. That, if the jury find that the jerked beef was-a perishable article within the meaning of the policy, the defendants are' not liable as for a total loss of the freight, unless it appears that there was a destruction in specie of the entire cargo, so that it had lost its original character at Nassau, the port of distress ; or that a" total destruction would have been inevitable from the. damage received, if it had been resliipped before it could have arrived at Matanzas, the port of destination. 2d. If the jury find, that, from the condition of that portion of the cargo sold at Nassau, it was for the interest of the insured and insurers of the cargo, that it should have been so sold, and not transported to Matanzas, still, that the plaintiffs are not entitled to recover as for a total loss of freight, provided their own vessel could have been repaired in a reasonable time, and at a reasonable expense, so as to perform the voyage, or they could have procured another at Nassau, the port of distress, and have transshipped the portion sold in specie to the port of destination. And 3d. That, assuming the plaintiffs are entitled to recover, the defendants are not entitled to deduct from the insured the freight .earned on the voyage from-Baltimore to Rio upon the outward cargo, as the policy is' not for one entire voyage round from Baltimore out, and homé. Whereupon, it is now here-ordered and adjudged, that it be so certified to the said Circuit Court.


source: Caselaw Access Project

author: Mr. Justice GRIER

license: Public Domain

text:
    Philip Peck and William Bellows, Copartners, trading under the Firm of Philip Peck and Company, Plaintiffs in error, v. John S. Jenness, John Gage, and John E. Lyon, trading under the Name and Firm of Jenness, Gage, and Company, Defendants in error.
    The proviso of the-second section of the bankrupt act passed on the 19th of August, 1841, preserves all liens which may be valid by the laws of the'States ' respectively. .
    In some of the States, attachments are issued on mesne process, by which the prop- ,. erty seized is held to await the result of the suit. This constitutes a lien, which is saved by the proviso in the bankrupt act.
    The various kinds of liens explained.
    Therefore, where an attachment was issued and the defendants afterwards applied for the benefit of the bankrupt act, a plea of bankruptcy was not sufficient to prevent a judgment from being rendered condemning the property under attachment.
    The fourth section of the statute, if it stood alone, would make a plea of bankruptcy a good plea in bar in discharge of all debts; but if the whole statute be construed together, this is not the result.
    A rejoinder, setting forth that the District Court of the United States had decided that the attachment was not a valid lien upon the property, was not a good rejoinder.
    The District Court could not oust the State court of its jurisdiction, which had already attached.
    This case was brought up from the Superior Court of Judicature for the State of New Hampshire, by a writ of error, issued under the twehty-fifth section of the Judiciary Act.
    Peck and Bellows were residents of the town of Walpole, in the county of Cheshire and State of New Hampshire. Jenness, Gage, and Company resided in Boston.
    The facts in the case are sufficiently set forth in the opinion. of the court.
    It was argued by Mr. Goodriek, on behalf of the defendants in error.

      C. B. Goodrich, for defendants in error
    In October, 1842, the plaintiffs below sued out a process of attachment, upon which estate of the defendants below, real and . personal, was attached. This process issues without the sanction of any judicial officer. It issues at the will of any one who assumes to be a creditor of the party against whom it issues.. It is a proceeding in personam and in rem, — is available as the one or the other, as the party may elect.
    The question for adjudication is whether the original plaintiffs can avail themselves of this process as a proceeding in rem. Howland, who is the several assignee of each of the original defendants, is in no proper sense a party to the record. He appears in the names of Peck and Bellows, and relies upon their rights. 5 Stat. at Large, 443, ch. 9, <§> 3.

      Statutes operate upon property, contracts, or persons. The statutes of the United States and those of a State may operate upon the same property, the same contracts, the same persons. Their action is distinct in time, or in purpose, or both. The operation of the two jurisdictions, each within prescribed limits, is independent.
    Courts of equity cannot, in this country, in all things, exercise the same power, to the same extent, as do courts of equity in England. Courts of the United States and.those of the States have a different origin; their jurisdictions are for different purposes. The one court will exercise its control over the citizen, so as not to impair his ability to yield obedience to the other, whon and where such obedience is due. The jurisdiction of the courts of the United States and of the several States can never rightfully come in collision ; where the jurisdiction is - concurrent, the one which first attaches will retain it. There are only two modes in which á suit rightfully instituted in a Státe court can be proceeded in, or controlled by, the courts of the United States; the one is by transfer, the other under the twenty-fifth section of the Judiciary Act. The courts of the United States are invested with the exclusive power of construction of the laws and treaties of the United States ; courts of the several States construe the laws thereof: the construction of each, within its appropriate sphere, is obligatory upon the other*
    When a statute of the United Státes adopts or engrafts upon itself a statute or law of- one of the States, quoad the law adopted, the construction of such law', at the time of its adoption, by the highest judicial tribunal of the State whose law is adopted is.also adopted. . If this be not so, the'same law, acting within the same territory and upon the same person, may mean one thing in one court-room, something else in another. A State law adopted by the laws, of the United States does not cease to be a State law. The jurisdiction of the District Court of the United States, sitting in bankruptcy, over property, is coextensive with the effect produced by the decree of bankruptcy; which is to pass the property of the bankrupt, cum onere.

    The judgment of the court below should, be affirmed, and I submit, —
    I. That the District Court of the United’ States for the District of New Hampshire acquired no jurisdiction of" the several original petitions of Philip Peck and of William Bellows to be declared bankrupt, and its proceedings upon said several petitions are void. This is so, because the pleas do not aver or show that the petitions were verified by oath, without which oath and verification the petitions were nullities ; because the pleas do not aver that the petitioners represented to said District Court that they owed debts not created in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or while acting in any other judiciary character ; because the pleas do not aver or exhibit the notice which was ordered, or which was published, of the time when the said several original applications to be declared bankrupt would be considered. 5 Laws U. S. 440, ch. 9, <§> 1; United States v. Marvin, 3 How. 620 ; Elliot v. Pie'rsol, 1 Peters, 338 ; Ex parte Bollman, ’4.Cranch, 93; Sharp v. Spier, 4 Hill, N. Y. 76 ; Sharp v. Johnson, 4 Hill, 92; Bank of Utica v. Rood, 4 Hill, 535; 2 Christian’s Banjr. Law, %0, 21, 22; Cooper on Bank. Sta. 165; Buckland v. Newsome, 1 Taunt. 477; Sack-ett v. Andros, 5 Hill, 330; Stephens v. Ely, 6 "Hill, 608 ; Brereton v. Hiill, 1 Denio, 75; Yarnum v. Wheeler, 1 Denio, 331; Maples v. Burnside, 1 Denio, 332; Thatcher v. Powell, 6 Wheat. 119; Wilcox v. Jackson, 13 Peters,' 511, 516, 517; Walden v. Craigg’s He rs, 14 Peters, 147; Hickey v. Stewart, 3 How. 762 ; Wheeler' v. Townsend, 3 Wend. 247 ; Gordon v. Wilkinson, 8 D. & E. 507; 1 Chitty on Plead. 223; Owen on Bank. App. 25; Archbold on Bank. App. 9, and 97; Wyman v. Mitchell, 1 Cow. 316; Frary v. Dakin, 7 Johns. 75; "Ex parte Balch, 3 McLean, 221; United States v. Clark, 8 Peters, 444, 445 ; Garland v. Davis, 4 How. 131.
    II. The several rejoinders of the original defendants, and the matters therein set up, amount in law to a departure from their several pleas. 1 Chitty. on Plead. 648.
    III. The statute of the United States, in relation to bankruptcies, passed Aug. 19, 1841, as to all matters of liens and securities adopts the laws of the States respectively, and exempts from the operation of the decree of bankruptcy, all property which, at the time of the decree, might be charged with any duty, lien, or security valid by the law of the State in which the duty, lien, or security might arise.
    This position is sustained by the language of the act, and is in consonance with the uniform policy of the United States, which has been to adopt the laws, usages, and modes of proceeding of the several States so far as practicable. 1 Laws, 92, 1789, ch. 20, <§> 34; 1 Laws, 93, 1789, ch. 21, <§. 2; 1 Laws, 276, 1792, ch. 36, <§> %; 4 Laws, 278, 1828, ch. 68, <§. 1; 4 Laws, 281, ch'. 68, 4 2; 1 Laws, 79, ch. 20, <§. 12; 2 Laws, 123, ch. 32,.§ 3; 1 Laws, K>6, ch. 5; 5 Laws, 393, ch. 43, § 4; 5 Laws, 394, ch. 47, § 1; 5 Laws, 321, ch. 35; 5 Laws, 410, ch. 2, $ 1.
    An attachment on mesne process was known to the laws of the United States, ás a lien and security, and recognized by its judiciary, prior to the bankrupt statute. 1 Laws, 602, ch. 75, <§> 16; 3 Laws, 33, ch. 16, <§> 28 ; 3 Laws, .83, ch. 56, <§> 6 ; 1 Laws, 594, ch. 71, <§> 15; United States v. Graves, 2 Brock. 381; Tyrell’s Heirs v. Rountree, 1 McLean, 95; S. C., 7 Peters, 464; Beaston. v. Farmers’" Bank of Delaware, 12 Peters, 102; Wallace v. McConnell, 13 Peters, 151.
    ■ I now recur to the position, that the bankrupt statute adopts liens which are so by the laws of the several States. Its correctness is evident from the proviso in the second section of the act, and from the fact that the act professes to pass only such property ‘as the bankrupt might convey; the act gives him no new. right of property, or power over it. Ex parte Christy, 3 How. 316, fully sustains the principle, in which the court say, “ There is no doubt that the liens, mortgages, and other securities within the purview of this proviso, so far as they are valid by the State laws, are not to be annulled, destroyed, or impaired under the proceedings in bankruptcy, but they are to be held of equal obligation and validity in the courts of the United States as they would be in the State court.” It is not necessary to ascertain what constitutes a lien at common law, in equity or admiralty, or in the. civil law. The lien protected is such a one as is known to the law of the State in which the question arises. Savage v. Best, 3 How. 119; Norton v. Boyd, 3 How. 436. How will this court ascertain what constitutes, a lien by the. laws of New Hampshire ? By a resort to the adjudications of its highest judicial tribunal; this course is in conformity with general principles and with the course of this court. Green v. Neal, 6 Peters, 295; Livingston v, Moore, 7 Peters, 542; Jackson v. Chew, 12 Wheat. 153; Shelby v. Guy, 11 Wheat. 361.
    IV. An attachment on mesne process, ron the 19th of August, 1841, and on the 10th of October, 1842, was a lien or security valid by the laws of the Staté of New Hampshire.
    In support of this, I refer to the laws of New Hampshire, edition of 1830, pp. 58, 59,101,105,1.06 ; to Kittridge v. Warren and Kittridge v. Emerson, in manuscript, not yet reported. These cases, and the authorities cited in them, exhibit the law of New Hampshire as it has been recognized from its early history. .The principle is sustained by the. courts of other States. Kilborn v. Lyman, 6 Met. 304 ; Hubbard v. Hamilton Bank, 7 Met. 342 ; Am. Ex. Bank v. Morris Canal Co., 6 Hill, N. Y. 367; Storm v. Waddell, 2 Sandford, Ch. R. 494; Davidson v. Clayland, 1 Harr. & Johns. 546. . I refer, also, , to an opinion of a distinguished jurist, Hon. Jeremiah Mason, which sustains the views submitted.

      In opposition to the two last positions, Ex parte Foster, 2 Story, 131, is relied upon. I submit that the authorities relied upon in this case do not support the judgment pronounced. The cases mainly relied upon in Ex parte Foster Eire Atlas Bank v. Nahant. Bank, 23 Pick. 488; Conard v. Atlantic Ins. ■Co., 1 Peters, 386, 441, 443; Giles «.-Grover, 6 Bligh, 279. An examination of them will show that they sustain, so far as applicable, the views which I ■ have presented ; the case of 'Giles v. Grover proceeded entirely upon the ground of prerogative, and it was so regarded in a subsequent case. Godson v. Sanctuary, 1 Nev. & Mann. 52.
    The case Ex parte Foster is not sustained by the reasons; ■our answer to them is complete. A statute lien is exactly what the statute makes it, and it derives no aid from the analogies of other liens. Several of the adjudications of this court, to ■which I have referred, are in opposition to the doctrines of Ex parte Foster.
    • V. Assuming that the bankrupt statute adopts the laws of the States respectively as to liens and securities, and that an attachment on mesne process, as recognized by the laws of New Hampshire, is regarded by such law as a valid lien or -security, it results, ex necessitate, that a discharge of the bankrupt does not and cannot defeat a lien or security rightfully created and existing prior to any act of bankruptcy.
    Assuming the third and fourth propositions as sound, the one now; taken is a necessary deduction from them. It is sustained by-the express terms of the proviso. It is so independent of the proviso. The decree of bankruptcy passes the property, and its effect cannot be enlarged or diminished by the discharge, or by a denial of the discharge, to the bankrupt. An attachment is of double aspect; it is a proceeding in per-sonam and in rem; so far as it is in personam, the discharge is a protection; .so far. as it is in rem, the discharge.cannot avail to destroy a right which the act protects. It is clearly competent for the court to render a judgment in rem, and thus uphold every part of the act. Wallace v. Blanchard, 3 N. H. 395 ; Chickering v. Greenleaf, 6'N. H. 51; Buxton v. Marden, 1 D. & E. 80; Steward' v. Dunn, 11 Mees. &• Welsby, 63; Newton v. Scott, 4 Mees. & Welsby, 434*; S. C., 10 Mees. & Welsby, 471. Whether the court of New- Hampshire has power to render-a conditional judgment where the law and justice require such judgment is a matter exclusively cognizable by that, court,
    VI. The order of the District Court exhibited in the rejoinders is not an authority, within the meaning of the twenty-fifth section of the Judiciary Act of 1789; and if it be such authority, "neither Peck nor Bellows claims title under it; for which reasons, the decision of the State court upon the effect of such order cannot be reexamined in this court.
    A judgment of a court of the United States must be enforced by itself. If the party relies upon it in a State court, he .must be content with such effect as the State court gives-in it; otherwise, causes will come' here indirectly, which cannot, under the laws of the United States, come here directly. Osborn v. United States, 6 Wheat. 738 ; Montgomery v. Hernandez, 12 Wheat. 129; Williams v. Norris, 12 Wheat. 117; Crowell .v. Randall, 10 Peters, 368 ; Mackay v. Dillon, 4 How. 447; Owings v. Norwood, 5 Cranch, 334; Hickie v. Starke, 1 Peters, 98. ■
    VII. The District Court had no jurisdiction to' make the order which is set up in the several rejoinders of the defendants below. It is an attempt by the District Court,'contrary to the provisions ot the twenty-fifth section of the Judiciary Act, to exercise appellate jurisdiction over the State court. The property, at the time the order was made, was in custodia le-gis. Ashton v. Heron, 2 Mylne.& Keene, 390; 2 Story’s Eq. <§> 891. Ex parte Christy admits that the District Court cannot reach the State courts; if it can reach their offices, the protection is of no value. Ship Robert Fulton, 1 Paine, 620; Hogan v. Lucas, 10 Peters, 403 ; Brown v. Clark, 4 How. 4; Knox v. Smith, 4 How. 316 ; Harris v. Dennie, 3 Peters, 294; Ex parte Dorr, 3 How. 103 ; Ex parte Bellows and Peck, 2 Story, 443 ; Slocum v. Mayberry, 2 Wheat. 1.
    I have assumed, so far, that all the doctrines of Ex parte Christy are to be sustained by this court. T- submit, however, “ that a suit rightfully instituted in a State court, before the institution of proceedings in a court of the United States, cannot be arrested by injunction from any court of the United States.” If this be not so, our complex system of government cannot be upheld. 1 Laws, 334, 335, ch. 22, § 5; An-nis v. Smith, 16 Peters, 313. This proposition is in harmony with the analogy w'hich may be drawn from the English law of bankruptcy. Ex parte Pease, 19 Ves. 46 ; Ex parte Heath, Món. & Bligh, 171; Ex parte Bocherley, 2 Glyn &■ Jam. 369; Ex parte Tindal, Buck, 305.
    VIII. The order of the District Court can have no effect upon the rights of the parties before this court. The defendants in error were not parties to the proceeding before the District Court. The order is, in personam, against the sheriff and his deputy, and does not reach, or in any manner fasten upon, the property. Ramsey v. Eaton, 10 Mees. & Welsby, 22; Bellows and Peck, 3 Story, 428; Marshall v. Beverley, 5 Wheat. 313; Conn v. Penn, 5 Wheat. 424; Russell v. Clark, 7 Cranch, 69; Aspden v. Nixon, 4 How. 497, 498; Hollings-worth v. Barber, 4 Peters, 475.
    IX. The several petitions of Peck and of Bellows to be der dared bankrupt do not aver the insolvency or inability of Philip Peck & Go., as a firm, to pay its debts ; and the several decrees of bankruptcy do not subject the joint or partnership property to the action of the bankruptcies. The fourteenth section of the bankrupt statutes especially provides for the case of partnership's. Taylor v. Feilds, 4 Ves. 396; Ex parte Ruffin, 6 Ves. 126; Young v, Keighly, 15 Ves. 557; Dutton.^ v. Morrison, 1 Rose, 213 ; Ex parte Farlow, 1 Rose, 421; Shriver «. Lynn, 2 How. 43.
   Mr. Justice GRIER

delivered the opinion of the court.

The defendants in error, Jenness, Gage, & Co-., instituted this .suit against Philip Peck and William Bellows, in the Court of Commtm Pleas of Cheshire county, New Hampshire, demanding the sum of $ 2,000, for goods sold and delivered. The action was served according .to the practice of that State, on the 10th of October, 1842, by the'attachment of the goods, chattels, and lands of the defendants. The- cause was continued till April term, 1844, when - Aaron P. Howland, as-signee in bankruptcy of each of the defendants, was, on motion, .admitted by the court. to come in and defend in their names.- He pleaded severally their application to the District Court of the United States, at Portsmouth,.on the 26th of November, 1842, for the benefit of the bankrupt law ; on which •they were decreed bankrupts, on the 28th day of December, 1842. That Howland was appointed assignee, and that defendants severally received a certificate of discharge on the 21st of June, 1843.

To these pleas the plaintiffs below replied, that, before the filing of said petitions by the defendants, to wit, on the 8th of October, 1842, the plaintiffs in good faith sued and prosecuted out of the Court of Common Pleas their writ of attachment against the defendants for a just debt; by virtue of which the sheriff attached and took into his custody and possess!» n, as security for such judgment as the plaintiffs in their said suit might obtain, certain goods and cháttels on a schedule an- . néxed, and now retains the custody thereof; and therefore pray judgment to be levied of the sanie.

To this replication the defendants rejoined, that Howland, the assignee, on the 25th of July, 1843, presented to the District Court ..of the United States a petition, setting forth the plaintiffs’ attachment of the goods, and averring that such attachment was not a valid lien on the said goods, and that therefore the sheriff had.no right to detain them ; and prayed the court to order and decree that the sheriff should deliver the goods to the assignee, or account for their value : and that' the court, after notice to the parties and hearing, had decreed accordingly.

To these rejoinders the plaintiffs demurred ; and the Court of Common Pleas entered their judgment, as follows: — “ That the .plaintiffs recover against the said Philip .Peck and William Bellows $ 1818.87, damages and costs of suit; which • sums are to be levied only of the goods and chattels and estate of the defendants attached upon the plaintiffs’ writ aforesaid, and described in the plaintiffs’ said replications, and' not otherwise.”

This judgment of the Court of Common Pleas was removed by writ of error to the Superior Court of Judicature of the State of New Hampshire, at the instance of the defendants ; and, on hearing the judgment of the".court below, was' affirmed.

. The defendants, now plaintiffs in error, then prosecuted their writ of error .to this court, under the twenty-fifth section of the Judiciary Act of 17S9. As the record shows that the highest court of judicature of the, State of New Hampshire has decided against a title-claimed under a statute of the.United States, it is clearly a proper case for the revision of this, court.. Various questions have been made on the argument of this case, as to the regularity of the bankrupt proceedings, and the validity of the certificates of discharge set forth in the pleas of the defendants below. But we do not think it necessary to notice them; and shall therefore assume that the bankrupt proceedings are regular, and-properly set forth in the pleas.

I.' The first- question that will present itself for our consideration will be, whether the replication of the plaintiffs below’ sets forth matter in avoidance of the plea which will entitle them to the judgment prayed for, and afterwards rendered by the court. In order to test its sufficiency, we must first inquire, whether an attachment of property under the process peculiar to New Hampshire and some other States creates a lien or security on the property attached, within the true meaning and intention of the proviso of the second section of the bankrupt act.

The words of this proviso are as follows And provided, also, that nothing in this act contained shall be construed to annul, destroy, or-impair any lawful rights of, married women, or any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the States respectively, and which .are not- inconsistent with the provisions of the second and fifth sections of this act.”

As it is not alleged that the attachment in this case is subject to any imputation of inconsistency with' the provisions of the second and fifth sections of the act, it will not be necessary to give them further attention. Taking the words of the proviso, 'disconnected with this exception, they are of the most general and expansive character; they are equivalent to a saving of ajl liens or securities, &c., from any construction of the act that shall in' any wi e annul, destroy, or impair them ; and, furthermore, to test their validity, we are referred to the laws of the States respectively.

At common law there can be no lien without possession. It is there defined, a right in one man to retain that which is in his possession belonging to another, till certain demands of him, the person in possession, are satisfied. (Hammond v. Barclay, 2 East, 235'.) In maritime law, liens exist independéntly of possession, either actual or constructive. In courts of equity, ' the term lien is used as synonymous with a charge or encumbrance upon a thing, where there is neither jus in re, nor ad rem, nor possession of the thing. Hence a judgment which, by virtue'of the statute of Westminster-2d, (commonly called the Statute of Elegit,) is a charge upon the lands of the debt- or, is' called in courts of equity in England, and in the courts of law of many of these States, a lien, and executions which bind the personal property of the 'debtor, after their delivery to the sheriff, are termed liens, both before and after the property is seized and taken into the custody of the law by its officer. In the case of Waller v. Best, 3 Howard, 111, this courc decided that in Kentucky the creditor' obtains a lien upon .the property of his debtor by the delivery of a fi. fa. to the sheriff, and this lien is as absolute before the levy as'after ,• and that a creditor is not deprived of this lien by an act of bankruptcy on the part of the debtor, committed before the levy is made, but after the execution is in the hands of the sheriff; and “it is unnecessary,” say the court, “ to remark .upon the cases which have been decided 'in other States, or in England, because the question depends altogether upon the law of Kentucky.”

It would-be an arbitrary and fanciful exposition of the terms of this proviso to say • that it saved common-law liens, and not statute liensj. liens after judgment, and not liens' before judgment; or to assert that it is the policy of the, bankrupt act to save the lien of a factor or bailee, while it annuls that of the judgment or execution creditor.

It is clear, therefore, that whatever is a valid lien or security, upon property, real ór personal,, by the laws of any State, is exempted by the .express language of the act.

Let us inquire, then, whether an attachment on mesne process is a valid lien or security on the property attached by the laws of New Hampshire, as expounded by her courts.

This species of process is peculiar to the New England States. ■ As early as' the year 1650, while New Hampshire was. united to the Massachusetts colony, it was enacted, that “henceforth goods attached upon any action shall not be released upon the appearance of'the party or judgment, but shall stand engaged until the judgment- or the execution granted on the same be discharged.” (Charters and Colony Laws, 50.) And a proviso was added in 1659, that, when. execution was not taken out within one month after judgment, the attachment shall be released and void in law, &c.

The eárliest provincial legislation of New Hampshire adopted the' same system, which has been continued with some variations to the present day. In 1718, they describe the 'goods attached as “ security to satisfy the judgment ” which the plaintiff might recover on the trial. (Provincial Laws N. H. 113.) In the statute of July, 1822, and of November sessions, 1842, ch. 2,- the charge or encumbrance created by an attachment is denominated a lien.

The mode of proceeding and practice, as at present established, under writs of attachment in the State of New Hampshire, is thus described by the Superior Court of that State, in the case of Kittridge v. Warren.

“ In an attachment of personal estate, the sheriff, upon the service of the writ, takes the possession of the goods, and acquires thereby a special property in them, for the purpose of enforcing and protecting the attachment, and the rights of all concerned in the attachment and in the goods. He is then accountable, both to the plaintiff and to the defendant, for the disposition of them. If the plaintiff obtains a judgment, they are seized and. sold upon the execution. If he fails, they are returned to the debtor. Some person may become accountable, for them, and they may thus go back into the hands of the debtor, and the attachment be dissolved; the sheriff having, by means of a receipt for them, the security of some third person, which is in that case.to be-made available to the creditor. But if the attachment is not dissolved, it fastens itself upon the goods, as a charge or encumbrance, like ' the attachment upon real estate, and. the avails of them, are first to be applied to the satisfaction of the judgment, when recovered. Subsequent attachments may be made upon, them by the same sheriff, and where there are several attachments, the attaching creditors have a right to priority of satisfaction; so far as those goods are concerned, not by priority of judgment, but by that of the attachment. Poole v. Symonds, 1 N. Hamp. 292, 294; Bissell v. Huntington, 2 ib. 142; Hackett v. Pickering, 5 ib. 24; Kittredge v. Bellows, 7 ib. 428; Clarke v. Morse, 10 ib. 238.”

The statute of elegit has never been, adopted in this State, and hence a judgment is not treated as a charge or lien on the lands of the defendant, and the reason would seem, to be, because the plaintiff could select his security upon specific property by his attachment at the commencement of his suit, and hold it for thirty days afterjudgment for the purpose of satisfaction'. Hence their courts have denominated the charge or security thus obtained a lien. (See Dunken v. Fales, 5 N. Hamp. 538; Kittredge v. Bellows, 7 ib. 427; Clarke v. Morse, 10 ib. 238; Burnam v. Folsom, 5 ib. 568; Kittridge v. Warren; Kittridge v. Emerson, &c.)

In Massachusetts, also, the charge or encumbrance created by an attachment is denominated a lien. See 9 Mass. Rep. 210; Fettyplace v. Dutch, 13 Pick. 392; Arnold v. Brown, 24 Pick. 95; Kilborn v. Lyman, 6 Met. 299, &c. In Connecticut, also, see Carter v. Champion, 8 Conn. 550.

Having thus shown that an attachment on mesne process creates a charge on the property attached in favor of the plaintiff, which is, in the language of the statutes and courts of New Hampshire, called a security and a lien, it will, be unnecessary to notice arguments which have been urged against them on the ground of their peculiarities or distinctive features. The mere accidents of the subject cannot alter its essence: It is a statute lien, and therefore as much protected by the general language of the. proviso .as a common law lien.

II. Could this lien be defeated by the interposition of the plea of bankruptcy as a bar to a judgment in favor of the plaintiff?

By the fourth section of the act, it is declared, that “ the certificate or discharge, when duly granted, shall, in all courts of justice, be. deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt which are provable under this act, and shall or may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever.” And it is contendéd, as the lien of the attachment was defeasible, and could only be rendered absolute and of practical benefit to the plaintiff by the recovery of a judgment for his demand, which is effectually barred by the plea, that therefore the action and the lien mpist fall together.

This couclusion would be undoubtedly correct, if we cron-strue this section of the act by itself, and without regard to other provisions of the same act.

But it is among the elementary principles with regard to the construction of statutes; that every section, provision, and clause of a statute shall be expounded-by a reference to every other; and if possible, every clause and provision shall avail, and have the eifect contemplated by the legislature. One portion of a statute should not be construed to annul or destroy what has been clearly granted by another. The most general and absolute terms of one section may be qualified and limited by conditions and exceptions contained in another, so that all may stand together.

•The proviso to the second section of this act declares, that nothing in this act contained shall be construed to annul, destroy, or impair,” any liens, &c. Here, then, is an absolute prohibition to the- court to construe the general terms of the fourth section so as to defeat the lien saved by the second. It is clear, therefore, that the coqrt, while it grants the defendant the benefit of his discharge, must do it in such a manner as not to impair the rights saved to the plaintiff. All liens, whether by mortgage or judgment, by common law or by statute, are for the purpose of obtaining satisfaction of some debt or claim ; and the construction of the fourth section which would treat the .bankrupt’s certificate as an absolute discharge from all his debts, for every purpose, would be alike destructive of them all. The mortgagee, the factor,-or the bottomry lender, is in no better condition than the judgment or attachment creditor. And an attempt to make a distinction between them, which would save the rights of one, and impair or destroy those of the other, would be judicial legislation, —jus dare, not jus dicere. In order, therefore, to give full effect to all the provisions of the act, the bankrupt’s certificate must be made to operate as a discharge of his person and future acquisitions, while, at the same time, the mortgagees or other lien creditors shall be permitted to have their satisfaction out of the property mortgaged or subject to lien. A legal right without a remedy would be an anomaly in the law.

The judgment rendered in this case has fully attained both these objects. While it discharges the defendant from personal liability, it saves to the plaintiffs below their remedy, and ■awards their satisfaction out of the property attached, “and not otherwise.”- The books are full of precedents for such a judgment. When an administrator pleads plene administravit, the plaintiff may admit the plea, and take judgment of assets, quando acdderint. When the defendant pleads a discharge of his person under an insolvent law, the plaintiff may confess the plea, and have judgment to be levied only of defendant’s future effects. 1 Chitty, PI. 548.

III. The only question that remains to be considered is,. whether the rejoinder of the defendants below is a sufficient answer to the replication.

It sets up, by way of avoidance of the attachment pleaded in the replication, that the District Court of the United States, on the petition of the assignee, and on notice to the plaintiff in this suit, had decreed that _this attachment was not a lien oii the property in the custody *he sheriff, and ordered him to deliver it up to' the assignee, or account to him for its value. It does not pretend to show how the proceedings in the Court, of Common Pleas had been removed to the District Court, or how its judgment on the cause pending before it could be thus anticipated; nor that the District Court had found any means of enforcing its decree by compelling the sheriff to deliver the property attached to ■ the assignee, and thus, in effect, destroy the-lien: but it seems to rely on,the decree as a judgment on the question, which should operate by way of estoppel. This necessarily involves the inquiry, whether the District Court was vested with any power or authority to oust the Court of Common Pleas of its jurisdiction over the cause, aud supersede its judgment, by this summary proceeding.

The District Court has exclusive jurisdiction " of all suits and proceedings in bankruptcy.” But the suit pending before the Court of.Common Pleas was not a suit or proceeding in bankruptcy; and although the plea of bankruptcy was interposed. by the defendants, the court was as competent to entertain and judge of that plea as of any other. It had full and complete jurisdiction over the parties and the subjecfc-mattér of the suit; and its jurisdiction had attached more than, a month before any act of bankruptcy was committed. ‘It was an independent tribunal, not deriving; its authority from the same sovereign, and, as regards the District .Court, a foreign-'forum, in every way its equal. The District Court had no supervisory power over it. The acts of Congress point out but- one mode by which the judgments of State courts can be revised or annulled, and that is by this court-, under the twenty-fifth section of the Judiciary Act. In certain cases, where one of the parties is a citizen of another State, he has the privilege of removing his suit to the courts of the United States. But in all other respects, they are to be regarded as equal and independent tribunals..

It is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and - whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every other court; and that,where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in' it, have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in comity, but on necessity. For if one may enjoin, the other may retort by injunction; and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other.- Neither can one take property from the custody of the other by replevin or any other process, for this would - produce á conflict extremely embarrassing to the administration of justice. In the case of Kennedy v. The 'Earl of Cassilis, Lord Eldon at one time granted an injunction to restrain a party from proceeding in a suit pending in the Court of Sessions of Scotland, which, on.more mature reflection, he dissolved ; because it was admitted, if the" Court of. Chancery could in that way restrain proceedings in an independent foreign tribunal, the Court of Sessions might equally enjoin the parties from proceeding in chancery, and thus they would be unable to proceed in either court. The fact, therefore, that an injunction issues only to the parties before- the court, and not to the court,, is.no evasion of the.diiflculties that are the necessary result of an attempt to exercise that power over a party who-is a litigant-in another and independent forum.

The act of Congress of the 2d of March, 1793, ch. 66, § 5, declares that a writ of injunction shall not be granted “ to stay proceedings in any court of a State.” In the case of Diggs v. Wolcott, 4 Cranch, 119, the decree of the Circuit Court had enjoined the defendant from proceeding in.a suit pending in a State court,-and this-court reversed the decree, because it had no jurisdiction to enjoin proceedings in a State court.

It follows, therefore, that the District Court had no supervisory power over the State court, either by injunction or the more summary method pursued in this case, unless it has been conferred by the bankrupt act. But we cannot discover any provision in that act which limits fhe. jurisdiction of the State courts, or confers any power on the bankrupt court to supersede their jurisdiction, to annul or anticipate their judgments, or wrest property from the custody of their officers? On- the contrary, it provides that “ all suits in law and equity then pending, in which such bankrupt is a party, may be prosecuted and defended by such assignee to its final conclusion, in the same way and with the same effect as they might have been by such bankrupt.”

Instead of drawing the decision of the case into the District Court, the act sends the assignee in bankruptcy to the State court where the suit is pending,,and admits its power to decide the cause. It confers no authority on the District Court to restrain proceedings therein By injunction or any other process, much less to take, property out of.its custody or possession with a strong hand. An attempt to enforce the decree set forth in the rejoinder,%ould probably have been met with resistance, and resulted in a collision of jurisdictions much to be deprecated.

In fine, we can find no precedent for the proceeding set forth in this plea, and no grant of power to make such decree or to execute it, either in direct terms or by necessary implication, from any provisions of the bankrupt act; and we are not at liberty to interpolate it on any supposed grounds of policy or expediency.

The plea cannot, therefore, be sustained, and the judgment of the Superior Court of New Hampshire must be affirmed.

Order.

This cause came on to be heard on the transcript of the record of the Superior Court of Judicature of the State of New Hampshire, and was argued by counsel. On consideration-whereof, it is now here ordered and adjudged by this court, that the judgment of the said Superior Court of Judicature be and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum.


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    Abraham Colby, Plaintiff in error, v. James Ledden.
    The decision of this court in the preceding case of Peck v. Jenness affirmed.
    This, like the preceding case of Peck v. Jenness, was brought up from the Superior Court of Judicature of the State of New Hampshire, by a writ of error issued under the twenty-fifth section of the Judiciary Act.
    Ledden was an inhabitant of the Province of New Brunswick, and Colby of the State of New Hampshire. The attaeh- • ment was issued in 1837.
    The. case was similar, in it¡3 principal- circumstances, to that of Peck v. Jenness, and was argued together with it.

      C. B. Goodrich,, for the defendant in error.
    As to the principal question, I rely upon the argument sub-mitt§d in the case, of Peck v. Jenness. The attachment in this case was made before' the passage of the bankrupt statute. It cannot with much reason be said, that the right which the defendant below acquired by his attachment, legal when made, can be taken from him by subsequent legislation. Every objection, however, can be, made in this case, which can be taken in relation to any attachment. The debt is discharged here, to the same extent as any other debt.
    As to the objections, that the statute requisites have not been complied with which are essential to constitute an attachment, I submit- that the State court is the exclusive judge in this particular, and that its judgment is not open to review in this court.
   Mr. Justice GRIER

delivered the opinion of the court.

Thjs case was argued with the case of Philip Peck et al. v. John S. Jenness et al., and the record presents the same questions which have just been decided in that case. For the reasons there assigned, the judgment of the Superior Court of New Hampshire is affirmed.

Order.

This cause came on to be heard on the transcript of the record to the Superior Court of Judicature of the State of New Hampshire, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Superior Court of Judicature in this cause be and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum.