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Opinion of the court.

clerk's office of the State Supreme Court, but all of the persous named as defendants in the original writ are also named as such in the summons issued by the clerk of the State Supreme Court. Service of the summons was duly acknowledged by the original plaintiffs and by all of the eight defendants who did not sign the first petition in error.' Seasonable entry of the case was made in the Supreme Court of the State, and the parties having been fully heard the said Supreme Court affirmed the decree of the subordinate court and sent down their mandate commanding the subordinate court to cause execution to be had of the said judgment of the said Supreme Court, according to law.

Early application was made by the present plaintiff to the clerk of the Circuit Court of the United States for that district for a writ of error, under the twenty-fifth section of the Judiciary Act, to remove the cause into this court, and the record shows that it was duly issued and that it was properly allowed by the chief justice of the State Supreme Court.

Errors of a material character are assigned by the plaintiff as reasons for the reversal of the judgment rendered in the State courts, but it is necessary in the first place to examine the objection taken by the defendants to the jurisdiction of this court, as that objection presents a preliminary question which, if decided in favor of the defendants, will dispose of the case.

They, the defendants, insist that the writ of error should be dismissed because one only of the nine defendants in the court below is made a party in the writ as issued by the clerk of the Circuit Court, and because only one of the number has given bond to prosecute the writ of error with effect, as required by the act of Congress in such case made and provided.

Where there was a joint judgment against several and one only of the defendants sued out a writ of error, without joining the others, it was decided by this court, Marshall, C. J., giving the opinion, that it was irregular, and the court

Opinion of the court.

dismissed the writ of error. *

Subsequently the same rule was applied in a case where the cause was removed into this court by appeal, the opinion of the court being also given by the Chief Justice.† Reference was made in the opinion in that case to the former decision, but the court, not relying merely on authority, decided that it was correct as matter of principle that the whole cause ought to be brought before the court at the same time, and that all the parties united in interest ought to unite in the appeal, as appeals are subject to the same rules, regulations, and restrictions as are prescribed by law in case of writs of error. Since those decisions were published the question has frequently been presented to this court, and has uniformly been determined in the same way, where it appeared that the interest was joint and that no severance had been effected either in the judgment or by subsequent summons and severance or by some proceeding of an equivalent character. Undoubtedly those cases show what the general rule is, but it is equally well established, where some of the parties in interest refuse to join in the writ of error or appeal, that the others are entitled to resort to the process and proceeding of summons and severance to enable them effectually to remove the cause from the subordinate court into the appellate tribunal for re-examination.§ Cases arise beyond all doubt where only one of several defendants is affected by the judgment or decree, and it is well settled that in such cases the party whose interest only is affected by the alleged error may carry up the case without joining the others in the appeal or writ of error. Exceptional cases of the kind occasionally arise, but where the interest is joint and the interest of all is affected by the judgment, the rule is universal, that all must join in the writ of error, else it is open to the other

* Williams v. Bank, 11 Wheaton, 414.

Owings v. Kincannon, 7 Peters, 402.

Masterson v. Herndon, 10 Wallace, 416; Hampton v. Rouse, 13 Id. 187.
Todd v. Daniel, 16 Peters, 523.

Forgay v. Conrad, 6 Howard, 203; Germain v. Mason, 12 Wallace, 261; Cox v. United States, 6 Peters, 182.

Opinion of the court.

party to demand that it be dismissed, unless a severance of the parties in interest has been effected by summons and severance, or by some equivalent action appearing in the record.*

Apply that rule to the present case, and it is clear that the writ of error must be dismissed, as one only of the nine defendants in the original suit is named in the writ of error; nor is there anything in the record to take the case out of the operation of the general rule, as the plaintiffs in the court below have recovered judgment for the several tracts of land described in the declaration, against all of the defendants therein joined. Separate judgment for the damages and the whole of the rents and profits is rendered against the present plaintiff'; but the court also rendered judgment against the other eight defendants for the amount of the rents and profits, to be credited to the other defendant when collected, which shows that each defendant is interested in every part of the judgment.

Viewed in the light of these suggestions, it is quite clear that the writ of error in this case must be dismissed, as all the defendants are directly or indirectly affected by the judg ment in respect to the damages and rents, issues and profits, as well as the judgment that the title to the lands described in the declaration is in the present defendants. Such a controversy cannot be properly re-examined here by instalmeuts, nor unless all the parties to be affected by the result are before the court.

WRIT DISMISSED.

* Smyth v. Strader, 12 Howard, 327; Davenport v. Fletcher, 16 Id. 142; Heirs of Wilson v. Insurance Company, 12 Peters, 140; O'Dowd v. Russell, 14 Wallace, 402; Deneale v. Stump, 8 Peters, 526.

Statement of the case.

INSURANCE COMPANY v. BARING.

1. If there be no evidence to support facts, assumed in a prayer for a charge, to have been supported by a greater or less weight of evidence, it is the duty of the court to reject the prayer. It would be error to leave a question to a jury in respect to which there was no evidence.

2., Advances made in a foreign port to equip a vessel, and to procure for her a cargo to a port of destination, are primâ facie presumed to be made on the credit of the vessel.

3. They are a lien on the vessel and constitute an insurable interest.

ERROR to the Circuit Court for the District of Louisiana; in which court Baring Brothers & Co. sued the Merchants' Mutual Insurance Company, of New Orleans, for advances made by them, as the declaration in the case alleged, to the master and owners of the British bark Fanny, for the purposes of her equipment and to procure a cargo for the vessel, in a voyage from Cadiz, in Spain, to the port of New Orleans. The plaintiffs also alleged that through their agents they had obtained a policy of insurance, dated December 6th, 1867, from defendants. The insurance company above named insuring the hull of the bark for $9000, in the name of the said agents, containing the clauses, "on account of whom it may concern" and "lost or not lost," for the protection of those advances.

They further alleged that the bark, though well officered, manned, and equipped, suffered so much on the voyage, from the violence of weather, that the master found it necessary to put into a port of Cuba for such repairs as would enable him to prosecute the voyage; that their agents gave due notice of those facts to the president of the insurance company; that the company sent an agent to the port to take charge of the interest of all concerned; and that from the moment the agent arrived there he took exclusive charge of the repairs of the vessel and caused such work to be performed as he thought necessary; that he obtained from their agent there the funds necessary to pay for all such repairs; that the bark completed her voyage; that after her arrival

Statement of the case.

at the port of destination an adjustment of averages was made by the adjusters of averages in that port for costs, charges, and damages in making such repairs, and that in the said adjustment they, the plaintiffs, were awarded $3507 on the said policy of insurance.

The defendants filed an answer (equivalent to the general issue in an action of assumpsit) and a special plea that the bark was unseaworthy.

The insurance company made three prayers for instruction:

(1.) That if the evidence showed that the insurable interest of the plaintiff's was a bottomry bond on the bark, and that the vessel arrived in safety at the port of destination, the jury should find for the defendants.

(2.) That it is only when the vessel insured is lost that the assured on a bottomry bond can recover, and that if the proof was that there was no loss or destruction of the bark, the jury should find for the defendants, if the plaintiffs had insured on a bottomry boud.

(3.) That the defendants were not bound to tender back the premiums of insurance before availing themselves of any defence against the validity of the policy of insurance, or for its avoidance by a subsequent cause.

Verdict and judgment went for the plaintiffs for the amount awarded by the average adjusters. Exceptions were taken by the defendants to the rulings of the court in refusing to instruct the jury as they requested.

Nothing appeared in the record except the declaration, the answer, the verdict and judgment, the three bills of exceptions to the rulings of the court in refusing to instruct the jury as requested, neither of which contained any report of the evidence, and the motion for new trial, which merely stated that the verdict of the jury was contrary to law and the evidence, without giving any statement of the evidence which was submitted to the jury.

Evidence to show that the action was founded upon a bottomry bond, or that such a bond was offered in evidence, or introduced at the trial, was entirely wanting, nor was there

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