Marine Ins. Co. v. Tucker,

out of his effects.

United States v. Fisher et al.,

INSOLVENT-3.

1. The United States have no lien on the real es-
tate of their debtor, until suit brought, or bank-
ruptcy, or a notorious insolvency has taken place;
or being unable to pay all his debts he has made a
voluntary assignment of all his property; or hav-
ing absconded, his property has been attached by
process of law. United States v. Hooe, (73) 370
2. A discharge under an insolvent law, obtained
by fraud, is a discharge in due course of law.
Simms v. Slacum,
(300) 446

INSTRUCTIONS-2.

The instructions of the President of the United
States to a commanding officer of a United States
ship of war, if not warranted by law, will not jus-
tify the officer. Little v. Barreme, (170) 243
INSURANCE COMPANY OF ALEXANDRIA-1.

See Corporation.

INSURANCE, POLICY OF-1.

See Assumpsit, 3.

INSURANCE-2.

1. If the insured make a proposition to the un-
derwriters to cancel a policy, which they reject, and
afterwards assent to; but before information of
such assent reaches the insured, they hear of the
loss of their vessel, such proposition and assent do
not in law amount to an agreement to cancel the
policy. Head et al. v. Providence Insurance Com-
pany,
(127) 229
2. If it be inserted in a policy that "the insurers
are not liable for seizure by the Portuguese for
illicit trade," and the vessel be seized and con-
demned by the Portuguese for an attempt to trade
illicitly, the underwriters are not liable for the loss.
Church v. Hubbart,
(187) 249
3. An exclusion of the risk of seizure for illicit
trade, means, of a lawful seizure.
Church v. Hubbart,

(236)

265
4. A detention at sea to save a vessel in distress
is such a deviation as discharges the underwriters.
Mason v. Blaireau,
(268, 269) 275
5. A policy in the name of one joint owner "as
property may appear," (without the clause stating
the insurance to be for the benefit of all concerned),
does not cover the interest of another joint owner.
Graves et al. v. Boston Marine Insur-
ance Company,
(419) 324
be

6. The interest of a copartnership cannot
given in evidence on an averment of individual in-
terest, nor will the averment of copartnership in-
terest be supported by a special contract relating
to the interest of an individual.

Graves et al. v. Boston Marine Insur-
ance Company,

(419) 324
7. The evidence of the knowledge the underwrit-
ers had of the intention of the insured at the time
of making the policy, ought to be very clear to
justify a court of equity in conforming the policy
to that intention. id.
(Ib.) 324

INSURANCE-3.

1. If a policy upon a vessel has a clause "that
if the vessel after a regular survey should be con-
demned as unsound or rotten, the underwriters
should not be bound to pay," a report of surveyors
that she was unsound and rotten, but not referring
to the commencement of the voyage, is not suffi-
cient to discharge the underwriters.
(187) 406
2. Quare, whether such report, even if it relate
to the commencement of the voyage, would be
conclusive evidence? Id.
(Ib.) 406

Marine Ins. Co. v. Wilson,

3. See Non-Intercourse, 1.

4. If a vessel be insured at and from K to A, and
take a cargo for B and A, and sail with intent to
go first to B and then to A, and is captured before
she arrives at the dividing point between A and
734

(357) 466
5. It depends upon the particular circumstances
of the case, whether, if the vessel be captured and
recaptured, the loss shall be deemed total or par-
tial. Id.
(Ib.) 466
6. A promise by a factor that he would write to
his principal to get insurance, does not bind the
principal to insure.
Randolph v. Ware,
(503) 512

(29) 540
2. The state of the loss at the time of the offer
to abandon, fixes the rights of the parties.
Id.
(Ib.) 540
3. Quære, whether the sentence of a foreign
court of admiralty, condemning the vessel for
breach of blockade, be conclusive evidence of that
fact in favor of the underwriters.

Fitzsimmons v. Newport In. Co. (185) 591
4. Persisting in an intention to enter a blockaded
port, after warning, is not attempting to enter.
(Ib.) 591

Id.

5. The right of the insured to abandon and re-
cover for a total loss, depends upon the state of the
fact at the time of the offer to abandon, and not
upon the state of the information received.

Marshall v. Delaware In. Co. (202) 596
6. The technical total loss, arising from capture,
ceases with the final decree of restitution, although
the decree may not have been executed at the time
of the offer to abandon. Id.
(203) 596

7. A policy on a ship is an assurance of the ship
for the voyage, not an insurance on the ship and
the voyage. The underwriters undertake for the
ability of the ship to perform the voyage, not that
she shall perform it at all events.

Alexander v. Baltimore In. Co. (370) 650
8. The loss of the voyage as to the cargo, is not
a loss of the voyage as to the ship. Id. (371) 650
9. If at the time of the offer to abandon, the ship
be in possession of the master, in good condition
and at full liberty to proceed on the voyage, the
loss of the cargo will not authorize the owner of
the vessel to recover for a total loss of the vessel.
Alexander v. Baltimore In. Co. (371) 650
10. The sentence of a foreign court of admiralty,
condemning a vessel for breach of blockade, is
conclusive evidence of that fact in an action on the
policy of insurance.
Croudson v. Leonard,
(434) 670
INTEREST-4.

In an action upon a bond conditioned to perform
a contract, interest may be recovered in a case not
provided for by the contract.
United States v. Gurney,

INTERROGATORIES-

See Admiralty, 20.

JEOFAILS-1.

(333) 638

Stuart v. Laird,

(299) 115

(137)
2. Congress have not power to give original ju-
risdiction to the Supreme Court, in other cases than
those described in the constitution. Id. (Ib.)
60

72

3. It is the essential criterion of appellate juris-
diction, that it revises and corrects the proceedings
in a cause already instituted, and does not create
that cause. Id.
(175)
4. To give jurisdiction to the courts of the Unit-
ed States, the pleadings must expressly state the
parties to be citizens of different states, or that one
of them is an alien. It is not sufficient to say that
they reside in different states.
(343) 129
5. The plaintiff in error may show by affidavit
that the matter in dispute exceeds 2,000 dollars in
value. Rules of Court,
(xviii) 11

Abercrombie v. Dupuis,

Wood v. Wagnon,
Capron v. Van Noorden,

(9) 191
(126) 299

2. A plaintiff may assign for error the want of
jurisdiction in that court to which he has chosen
to resort.

Capron v. Van Noorden,
(126) 229
3. The courts of admiralty of the United States
have jurisdiction in cases of salvage where all the
parties are aliens, if the jurisdiction is not objected
to. Mason v. Blaireau,
(240) 266
4. Quare, whether the common law courts of the
United States have jurisdiction where all the par-
ties are aliens? Bailiff v. Tipping, (406) 320
5. The question of forfeiture of a vessel under
the act of Congress against the slave trade, is a
question of admiralty and maritime jurisdiction.
United States v. Schooner Sally, (406) 320
6. A citizen of the District of Columbia cannot
maintain an action against a citizen of Virginia in
the circuit court of the United States for the Vir
(445)
ginia District. Hepburn v. Ellzey,

JURISDICTION 4.

332

4. If it does not appear upon the record that a
suit might have been maintained in the courts of the
United States, between the original parties to a
promissory note, no suit can be maintained upon
it in those courts by a subsequent holder.
Id.
(Ib.) 545

5. The Supreme Court of the U. States has power
to issue the writ of habeas corpus ad subjiciendum.
Ex parte Bollman and Swartwout, (75) 554
6. The Supreme Court of the U. States has no
jurisdiction but what is given by the constitution
or laws of the United States. Id.
(93) 560

7. Courts which originate in the common law
possess a jurisdiction which must be regulated by
their common law, until some statute change their
established principles; but courts which are created
by written law, and whose jurisdiction is defined
by written law, cannot transcend that jurisdiction.
Id.
(93) 560
8. A court of the United States cannot enjoin
proceedings in a state court.
Diggs v. Wolcott,
(179) 587
9. It is incumbent upon the plaintiff in error to
show that the Supreme Court of the United States
has jurisdiction of the case.
United States v. Brig Union, (216) 600
10. The Supreme Court will hear viva voce testi-
mony to show the value of the matter in dispute,
Id.
upon a question of jurisdiction.
(Ib.) 600
11. The courts of the United States may examine
into the jurisdiction of a foreign court whose sen-
tence is offered in evidence; and if that foreign
court cannot, consistently with the law of nations,
exercise the jurisdiction it has assumed, its sen-
tence is to be disregarded. But the courts of every
country are the exclusive judges of their own juris-
diction, so far as it depends upon municipal laws.
Rose v. Himely,
(241) 608

12. If the complainant be a French citizen, and
the defendant a citizen of the State of Georgia, the
circuit court of the United States for the district
of Georgia has jurisdiction, although the complain-
ant and defendant are both executors, and their
respective testators were both citizens of the state
of Georgia.

Chappedelaine v. Decheneaux, (308) 630.
13. In deciding the question of jurisdiction the
court will look to the condition of the bond on
which the suit is brought, and not to the penalty.
United States v. M'Dowell, (316) 632

14. An appeal or writ of error lies from the dis-
trict court of the United States for the territory of
Orleans to the Supreme Court of the United States.
(370) 650

Morgan v. Callender,

15. If two citizens of the same state, in a suit
in a court of their state, claim title under the same
act of Congress, the Supreme Court of the United
States has an appellate jurisdiction to revise and
correct the judgment of that court in such case.
Matthews v. Zane,
(382) 654

16. See Bank of Alexandria, 1.

17. The district judge may alone hold a circuit
court, although there be no judge of the Supreme
Court allotted to that circuit.

18. All seizures under laws of impost, navigation
or trade of the United States, where the seizures
are made on waters navigable from the sea by ves-
sels of ten or more tons burden, are civil causes of
admiralty and maritime jurisdiction, and are to be
tried without a jury. United States v. Schooners
Betsy and Charlotte,
(443) 673

19. The question whether a seizure for violation
of a law of the United States be of admiralty or
common law jurisdiction is to be decided by the
place of seizure, not by the place of the offense.
(452) 676

Id.

3. See Jurisdiction, 18.

JUSTICES OF PEACE-1.
See Columbia District, 1.

JUSTICES OF PEACE-3.

(433)

670

735

1. Waste and unappropriated land in Kentucky;
in the year 1780, could not be lawfully appropriated
by survey alone, without a previous legal entry in
the book of entries.

Wilson v. Mason,
(45) 29
2. A writ of error upon a caveat lies from the
district court of Kentucky district to the Supreme
Court of the United States. Id.
(Ib.) 29
3. A survey in Kentucky, not founded on an en-
try, is a void act, and constitutes no title whatever ;
and land so surveyed remains vacant and liable to
be appropriated by any person holding a land war-
rant. Id.
(Ib.) 29

KENTUCKY-3.
See Caveat, 1.
KENTUCKY-4.

Loose and vague expressions in an entry of lands
in Kentucky may be rendered sufficiently certain by
the reference to natural objects mentioned in the
entry, and by comparing the courses and distances
of the lines with those natural objects.
Marshall v. Currie,
(172) 585

LANDS-1.

See Kentucky.

LANDS-2.

See Georgia. New Jersey.

LANDS-3.

1. Under the act of Pennsylvania of 3d April,
1792, for the sale of the vacant lands, &c., the
grantee, by a warrant, of a tract of land lying
north and west of the rivers Ohio and Alleghany,
and Conewango creek, who by force of arms of the
enemies of the United States was prevented from
settling and improving the said land for the space
of two years from the date of his warrant, but dur-
ing that time persisted in his endeavors to make
such settlement and improvement, is excused from
making such settlement as is described in the 9th
section of the act, and the warrant vests in such
grantee a fee-simple.

Huidekoper v. Douglass,

(1) 347

2. Quære, whether a British subject, born in Eng-
land in 1750, and who always resided there, could,
in the year 1786, take and hold lands in Virginia by
descent or devise? Lambert v. Paine, (97) 377
3. See Lien, 1.

LANDS-4.

See Kentucky, 1. Aliens, 2, 3. Georgia, 1, 4.
Collector, 2. Confiscation, 1. Jurisdiction, 15.
Covenant, 1, 2, 3. Evidence, 15, 16.

LAW-2.

See Legislative power.

LAW-4.

See Exception, 2. Municipal Law. 1, 2, 3, 4.
Law of Nations, 1, 2, 3, 4. Bank of Alexandria, 1.
Virginia, 3.

LAWS, FOREIGN-1.

See Admiralty, 5, 6.

LAWS, FOREIGN-2.
See Foreign Laws.

LAW OF NATIONS 4.

1. If a foreign court cannot, consistently with
the law of nations, exercise the jurisdiction it has
assumed, its sentence will be disregarded.

Rose v. Himely,
(241) 608
2. A seizure of a foreign vessel beyond the terri-
torial jurisdiction, for violation of a municipal reg-
ulation, is not warranted by the law of nations
Id.
(Ib.) 608

3. Quare, whether a French court can, consist-
temn American property never carried into the
ently with the law of nations and the treaty, con-
dominions of France, and while lying in a port of
the United States? Id.
(243) 609

of what is done, unless the court passing the sen-
4. No foreign court can question the correctness
tence loses its jurisdiction by some circumstance
which the law of nations can notice.
(294) 625

Hudson v. Gucstier,

its own rights.
5. Every nation is the arbiter and vindicator of

Appendix,

LEASE-4.

(514) 706

Faic v. Roberdeau,

1. The act of limitations of Virginia begins to
run against a creditor residing out of the state, if
he comes into the state for temporary purposes,
provided the debtor be in the state at that time.
(174) 402
2. The treaty of peace prevents the operation of
the act of limitations of Virginia upon British
debts contracted before the treaty.
(454) 497
3. An agent for collecting debts merely, is not a
factor within the 13th section of the act of limita-
tions of Virginia. Id.
(Ib.) 497

Hopkirk v. Bell,

LIMITATIONS 4.

1. The act of limitations of Virginia is no bar to
a British creditor's demand upon a promissory note
dated 21st of August, 1772, although one of the
plaintiffs was in the country after the treaty of
peace, viz, in 1784, and remained here until his
death, in 1785. Hopkirk v. Bell,
(164) 583
2. The act of limitations of Georgia does not
apply to mortgagees. Higginson v. Mein,
(415) 664
3. The act of limitations of Georgia does not re-
quire an entry into lands within seven years after
the title accrued, unless there be some adversary
possession or title to be defeated by such entry.
Shearman v. Irvine's Lessee, (367) 649

MAGISTRATE-4.

See Justice of Peace, 2, 3.

MANDAMUS-1.

1. The Supreme Court of the United States has
not power to issue a mandamus to a Secretary of
State of the United States, (notwithstanding the
act of Congress), it being an exercise of original
jurisdiction, not warranted by the constitution.
Marbury v. Madison,
(137) 60
2. Congress has not power to give original juris-
diction to the Supreme Court in other cases than
those described in the constitution. Id. (lb.) 60
3. An act of Congress, repugnant to the constitu-
tion, cannot become a law. Id.
(176) 73

ment.

Id.

4. The courts of the United States are bound to
take notice of the constitution. Id. (178) 73
5. A commission is not necessary to the appoint-
ment of an officer by the executive.
Quare? Id.
(Ib.) 73
5. A commission is only evidence of an appoint-
(Ib.) 73
6. Delivery is not necessary to the validity of
letters patent. Id.
(Ib.) 73
7. The President of the United States cannot
authorize a Secretary of State to omit the perform
ance of those duties which are enjoined by law.
Id.
(160)
8. A justice of peace in the District of Columbia
is not removable at the will of the President.
Id.

68

(Ib.) 68
9. When a commission, for an officer not holding
his office at the will of the President, is by him
signed and transmitted to the Secretary of State to
be sealed and recorded, it is irrevocable; the ap-
pointment is complete. Id.
(Ib.) 68
10. A mandamus is the proper remedy to compel
a Secretary of State to deliver a commission to
which the party is entitled. Id.
(137) 60
11. When a commission for an officer is signed
by the President, the appointment is complete.
Id.
(157, 162) 67-8
12. Neither the delivery of the commission, nor
its transmission to, nor actual receipt by, the offi-
cer, is necessary to the appointment.
(159, 160) 67

Id.

13. Nor is the acceptance of the office necessary
to the validity of the appointment.
(161) 68

Marbury v. Madison,

14. The possession of the commission is not nec-
essary to authorize the officer to perform the duties
of the office. Id.
(160) 68
15. When all the requisites have been performed
which anthorize a recor line o
instrument, and an order for that purpose has been
given, the instrument, is in law, considered as re-
corded, although the manual labor of inserting it
in a book kept for that purpose may not have been
Id.
performed.
(Ib.) 68
16. The keeper of a public record cannot erase
therefrom a commission which has been recorded,
nor refuse a copy to a person demanding it on the
terms prescribed by law. Id.
(Ib.) 68
17. There are certain acts of a Secretary of State
which are not examinable in the courts of justice.
Id.
(166) 70
18. He acts in two capacities; 1st. As the mere
agent of the President: 2d. As a public ministerial
officer of the United States. Id.
(Ib.) 70
19. When the heads of departments are the polit-
ical, confidential agents of the executive, merely to
execute a will, in cases where he possesses a con-
stitutional or legal discretion, their acts are only
politically examinable. Id. (166, 170, 171) 70-1
20. But where a specific duty is assigned by law,
and individual rights depend upon the perform-
ance of that duty, an injured individual has a right
to resort to the laws of his country for a remedy.
Id.
(166) 70

21. The propriety, or impropriety of issuing a
mandamus is to be determined, not by the office of
the person to whom the writ is directed, but by the
nature of the thing to be done. Id.
(170) 71

22. It is the essential criterion of appellate juris-
diction that it revises and corrects the proceedings
in a cause already instituted, and does not create
that cause. id.
(175) 72

23. A mandamus may be directed to interior
courts. Id.
(Ib.) 72

MARINE ORDINANCES-1.
See Admiralty, 5.
MARINER-2.

1. If a vessel in distress is abandoned at sea by
the master and all the crew, except one man, who
is left either by design or accident, he is discharged
from his contract as mariner of that vessel and
entitled to salvage.

Mason v. Blaireau,

(240) 266

2. If a mariner embezzles a part of the goods
saved, he forfeits his salvage. Id.
(Ib.) 266
MARYLAND-1.

See Bills of Exchange, 14. Acknowledgment.

1. A letter of credit, directed by mistake to John
and Joseph, and delivered to John and Jeremiah,
will not support an action by John and Jeremiah
against the writer of the letter for goods furnished
to the bearer upon the faith of such letter of credit.
It is not a written contract between the plaintiffs
and defendant, and parol proof cannot be admitted
to make it such. It is not a case of ambiguity, nor
of fraud, nor of mistake on the part of paintins.
Grant v. Naylor,
(224) 603
2. See Award, 1.

MONEY-1.

• See Execution, 1, 2, 3, 4.

1. A mortgage of part of the property, of a collector of the revenue to his surety in his official bond, to indemnify him from his responsibility as surety on the bond, and also to secure him from his existing and future indorsements for the mortgageor at bank, is valid against the United States, although it turns out that the collector was unable to pay all his debts at the time the mortgage was given, and although the mortagee knew, at the time of taking the mortgage, that the mortgageor was largely indebted to the United States.

United States v. Hooe,

(73) 370

2. A mortgage of chattels, in Virginia, is void as to creditors and subsequent purchasers, unless it be acknowledged, or proved by the oaths of three witnesses, and recorded in the same manner as conveyances of land are required to be acknowledged, or proved, and recorded.

Hodgson v. Butts,

(140) 392 3. Quære, whether the mortgagee of a ship is entitled to the freight? Id. (Ib.) 392 4. A decree for the sale of mortgaged property, on a bill to foreclose is a final decree and may be appealed from. Ray v. Law, (179) 404

NAVY OF UNITED STATES-2.

1. If there was no reasonable ground of suspicion that the vessel was trading contrary to law, the commander of a United States ship of war, who seizes and sends her in, is liable for damages. Murray v. Charming Betsy, (64) 208 2. Quære, what degree of arming constitutes an armed vessel? Id. (Ib.) 208

3. A commanding officer of a ship of war of the United States is not justified by the instructions of the President of the United States, if those instructions are not warranted by law; but is answerabie in damages to any person injured by his execution of those instructions.

The commander of a United States ship of war, if he seizes a vessel on the high seas, without probable cause, is liable to make restitution in value, with damages and costs, even although the vessel is taken out of his possession by superior force; and the owner is not bound to resort to the recap

tor, but may abandon and hold the origina' capter liable for the whole loss.

Quare, whether a person born in the colony of New Jersey before the revolution, and who resided there until the year 1777, but who then joined the British army in Philadelphia, and afterwards went to England, where he has ever since resided, and who has always claimed to be a British subject, can now take and hold lands in the state of New Jersey by descent from a citizen of the United States? Whether by the act of the state of New Jersey, of October 4. 1776, he became a member of the new Whether he could government against his will? expatriate himself after the peace? And, if expatriated, whether he became thereby completely an alien to all intents and purposes? M'Ilvaine v. Coxe's Lessee,

(280) 279

Quare, whether the statute of limitations can be given in evidence, on nil debet? Lindo v. Gardiner,

(343, 465) 130, 179
NON EST FACTUM-4.
See Deed, 1, 2.

NO RENT ARREAR-4.
See Lease, 1, 2, 3.

NON-INTERCOURSE-2.
See Admiralty, 1, 5.
NON-INTERCOURSE-3.

1. A vessel belonging to citizens of the United States in the year 1799, driven by distress into a French port and obliged to land her cargo in order to make repairs, and prevented by the officers of the French government from relading her original cargo, and from taking away, in exchange, any thing but produce or bills, might lawfully purchase and take away such produce, and such voyage was not illegal, so as to avoid the Insurance. (210) 414

Hallett v. Jenks,

2. The act of June 13th, 1798, did not impose any disability upon vessels of the United States bona fide sold to foreigners residing out of the United States during the existence of that act. Sands v. Knox, (499) 311

NORTH CAROLINA-2.
See Limitations, 1, 2.
NORTHWESTERN TERRITORY-1.

See Bills of Exchange, 11, 12. Notice of an illegal act will not make it valid. Wilson v. Mason, (45) 29

NOTICE 3.

1. Notice of the time and place of taking a depe sition given to the attorney at law, is not sufficient under the law of Virginia Buddicum v. Kirk,

(293) 444