Page images
PDF
EPUB

of these remarks, between the title or right to the land, and the title on which the action is founded; and he is merely showing that the latter always is, and must be, different in a writ of right from that in a writ of entry, without any regard to the evidence by which it is attempted to maintain the two actions.

The general principle on which Mr. Holmes relies, and on which his whole argument appears to be founded, is undoubtedly well established; to wit, that 'you shall not bring the same cause of action twice to a final determination;' but this rule cannot be applied and enforced, unless it can be made to appear to the court judicially that the second action is for the same cause as the first. It is not sufficient that the plaintiff has the same object in view, and that he intends to use the same evidence in the second action as in the first; if he sets forth a different title, or grievance, or other ground of action, in the second suit, he cannot be estopped or prevented from bringing it to a trial. It is accordingly not very uncommon to have two or even three ejectments brought to try the same title; and in the case of Lord Bath v. Sherwin, (1 Prec. in Chan. 261. 1 Bro. P. C. 266.) it appears that there had been five verdicts, in as many different actions of ejectment, in each of which the only question tried was the legitimacy of the Earl of Bath; and although the verdict in every case was in his favor, he could not prevent this repetition of vexatious suits by any plea in the courts of common law, and was driven to a bill in chancery, in which the house of lords, upon appeal, finally granted an injunction to restrain the adverse parties from any further proceedings. Mr. Holmes cannot disapprove more strongly than I do, the litigious spirit which would prompt to this repetition of actions, nor desire more earnestly to see some adequate means of restraining it; but I state the facts only to show that the general rule on which his argument is founded, is not and cannot be universally applied. In the case on which the present discussion arises, the law does not even propose to apply the principle; but when a man's freehold and inheritance are in question, it expressly provides for him a second action of a higher nature, to try again the right which he failed to establish in the inferior action.

C. J.

ART. X.-INSURANCE-SAILOR'S WAGES PAID TO CONSUL.

A vessel on her passage from Europe to the United States meets with bad weather, and is forced to bear away for the nearest port, to refit. There she is surveyed and found to be so much damaged, that she is condemned and sold for the benefit of the concerned. The American consul compels the captain to pay the seamen three months' wages extra, which he claims under the laws of the United States.

The questions are,

1. Has the consul a right to require such payment of wages? 2. If he has, is it a charge to be borne by the owner of the ship, like common wages, or is it a charge, upon the property saved, in the nature of a general average upon all the property saved?

3. Or is it a partial loss, to be borne by the underwriter on the ship or freight, and if by either, which?

As a matter of general interest, I have considered these questions, and, as at present advised, my opinion is as follows:

[ocr errors]

1. The act of Congress of 28th February, 1803, ch. 62, s. 3, declares, that whenever a ship or vessel belonging to a citizen of the United States, shall be sold in a foreign country and her company discharged, or when a seaman or mariner, a citizen of the United States, shall with his own consent be discharged in a foreign country, &c. &c. the consul of the United States shall be authorized to receive from the master, over and above the wages of such seaman so discharged, three months' pay.' The case put falls directly within the terms of the law. The vessel was sold and her company discharged, and there is no qualification in the statute as to the circumstances of the sale, whether voluntary or occasioned by necessity. Nor is there any public policy in excepting cases like the present from the operation of the statute. The object is to procure the means of bringing our seamen home to their country. Before the act the expense fell heavily on the government; and the act throws the burthen upon the owner, whenever his own act or that of his agent occasions the sale or the discharge. Merchants themselves may be benefited by the return of seamen, as it increases the competition for employment, and of

course lowers the common wages. But I put the case upon the words of the act; here, there is a sale made by the owner, for his own benefit; and though it arises from the consideration that the vessel is not worth repairs, that is a question which the law does not look to. It is not a penalty imposed, but an additional obligation to answer the return of the seamen. Unless public policy or inevitable construction obliges the court to introduce an exception, like the present, it ought not to be made. It may be a case of hardship on the owner; but it is no less a case of hardship to turn the seamen adrift in a foreign country, without any means of support or for their return. The loss of the ship is a common misfortune, which deprives the seamen of the ability to earn their common wages, and the owner suffers no more in proportion than they. Public policy, in my opinion, ought to lean in this case for the seamen; but the material consideration, after all, is, that the object of the act is thus most fully attained, and the public is relieved from the support, &c. of the seamen.

2. The charge is not in the nature of a general average. It is not an expense incurred for the benefit of all concerned; or for the farther prevention of the voyage. By the sale the voyage is broken up, and can be no further prevented. It is a burden imposed by the law upon the ship-owner, in consequence of his breaking up the voyage by the sale. The charge, therefore, is not to be borne by the underwriters as a general average.

3. But the charge is a particular average. It is in the nature of a charge on the sale, like a duty or other burthen on the sale. Whether it is to be borne by the underwriter on the ship, or on the freight, may admit of some doubt. If the expense were incurred for the purpose of preventing the voyage, it would be like extra wages, and properly a charge on the freight. But I rather think it is a charge on the ship, and to be borne by the underwriter on the ship, as it is an incident to the sale, and it diminishes the proceeds received by the sale pro tanto. Still, however, the point is not without difficulty, and it certainly admits of being viewed as a charge upon the underwriter on the freight. And if it is to be viewed as extra wages paid from necessity, in consequence of the common calamity, it is properly a charge on the freight.

[blocks in formation]

NOTE. In Dodge v. Union Marine Insurance Company, 17 Mass. R. 471, the court were of opinion that in case of a sale from necessity, as in the present, the three months' extra wages were not to be paid. But if payable at all they were not a general average, but a charge on the freight.

S.

ART. XI.-CASES DOUBTED1-ASSIGNMENTS.

THE recent decision in G. & I. Lord v. The Brig Watchman, in the District Court of Maine, has excited the attention of the profession. This decision pursues the doctrine laid down in a case decided in Connecticut, which we also propose to notice. The material facts in the Maine case, as stated by the District Court are as follows:

'On the 15th of July, 1829, Tobias Lord was owner of one third part of the brig Watchman, and being then in insolvent circumstances, made an assignment of all his property, including his share in this brig, to Francis Watts and S. C. Pray, in trust to sell and dispose of the same, and to pay such of his creditors as should become parties to the deed in the third part, in the order in which they are named in a schedule annexed to the assignment, and after paying them, to pay over the surplus to him, the assignor. There is a condition in the assignment that all creditors who become parties to it thereby released the assignor from all further claim of their demands. There are also covenants on the part of Lord to make further assurances to the assignees. In pursuance of these covenants, on the 3d of August following, Lord conveyed his third part of the Watchman by a regular bill of sale. The vessel was registered in Boston, the place of residence of the assignor, and was

1 The doubts and queries suggested in this article are communicated by different correspondents, who are known to the editors, and who are presumed to have no other motive than an impartial investigation of the doctrines discussed. The weight of the suggestions will rest, of course, wholly upon the reasons given and the authorities cited. The editors do not, by introducing these doubts and queries, wish to be considered as responsible for the sufficiency of their grounds. They will take care that the style of the discussions, as far as any tribunals are concerned, shall be decorous and respectful; and endeavor to exclude the investigation of questions of local interest or trifling importance.

2 A full report of this case will be found in the present number of the Jurist, p. 284.

at sea at the time of the assignment, and also at the time of the execution of the bill of sale. She arrived at Kennebunk Port, in Maine, on the 7th of August, and on the same day was attached at the suit of D. W. Lord, as the property of Tobias Lord. The agent of the assignees went on board and demanded possession of her on the 8th. Some time after this, on the petition of the part owners of two thirds, she was delivered to them by a decree of this court on their filing a bond for her safe return, and sent on a foreign voyage. The assignees joined the other owners in the voyage, paying their share of the outfits and taking their share of the return profits. D. W. Lord prosecuted his suit against Tobias Lord to judgment, and the Watchman having returned to Kennebunk, was seized on his execution by the deputy marshal and sold, and delivered 13th November, 1831, to William Lord. Before this time, that is, on the 14th Oct. 1830, the assignees sold the third which had been assigned to them, to G. & I. Lord, the libellants.

'This libel was brought to recover the possession of the vessel, and to have the sale by the deputy marshal on D. W. Lord's execution declared void.'

The points decided on this state of facts are the following:

'By the law of Maine a general assignment by an insolvent debtor, who has his domicile in another jurisdiction, of all his property to trustees for the benefit of his creditors, will not protect his property found in that State, from the attachment of a creditor resident there.

'But this rule applies only to property which is found within the jurisdiction of the State at the time of the assignment, and does not extend to property which is casually brought within the State after it has become vested in the assignees.

'An assignment by an insolvent debtor of all his property to trustees, in trust for the benefit of such of his creditors, as should become parties to the assignment and release their debts, and after paying such creditors, in further trust to pay over the surplus to himself, is void as against dissenting creditors; the legal operation of such an assignment being to delay and defraud creditors.' It is only the last of these points which we now propose to consider.

The judge first asserts that the question whether such an assignment is valid, is not settled in Massachusetts. This view of the law of Massachusetts, seems to us not to be correct.

In Hatch v. Smith, decided in 1809, 5 Mass. R. 42, the validity of an assignment for the benefit of creditors which con

« PreviousContinue »