(112 U. S. 506) NEW ORLEANS INS. Co. v. E. D. ALBRO Co. 1. APPEAL BOND-DISCRETION OF JUDGE. Where it lies within the discretion of a judge to accept a bond as security in which the sureties are no jointly or severally bound for the full amount of the obligation, but each of them severally for a specified part only, and he does accept such bond, his action in that particular is final, and not reviewable on appeal. 2. SAME-MOTION TO DISMISS-DESCRIPTION OF JUDGMENT. A motion to dismiss a suit on the ground that in the description of the judgment it omits to specify the term at which the judgment is rendered, is held to be properly denied, though the better practice is to specify such term. 8. SAME-MARINE Insurance-SHIP'S CARGO-BARRATRY OF MASTER. Where, in an action brought against an insurance company to recover the value of a ship's cargo stranded by the sea and sold by the master, it appearing that the policy issued by the company insured against the barratry of the master as well as the perils of the sea, the court instructed the jury that if they found that according to the rules and principles of marine insurance (which had been explained to them) the act of sale by the master was not the act of the underwriters, the defendants; still, if they found that such sale was barratrously inade, i. e., was an act of barratry, which was defined to them by the court, then, also, the liability of the defendants was established. Held, that there is no error in the charge. In Error to the Circuit Court of the United States for the Eastern District of Louisiana. On motion to dismiss or affirm. C. E. Schmidt, for plaintiff in error. O. B. Sansum, for defendant in er ror. WAITE, C. J. The motion to dismiss is put on the ground that the security bond is defective, (1) because the sureties are not jointly or severally bound for the full amount of the obligation, but each severally for a specified part only; and (2) because the judgment brought under review by the writ of error is not described with sufficient certainty. The bond is certainly unusual in form, but we cannot say that it is not within the legal discretion of a justice or judge, under some circumstances, to take it. Cases may arise in which it will be impossible to obtain security if this mode is not adopted. It being within the discretion of the judge to accept such a bond as security, his action in that particular is final, and, under the rule laid down in Jerome v. McCarter, 21 Wall. 17, not reviewable here. In the matter of the description of the judgment the bond is in the form which has been much in use, except that it omits the term at which the judgment was rendered. The better practice undoubtedly is to specify the term in describing the judgment, but the omission of such a means of identification is not necessarily fatal, and certainly, before dismissing a case on that account, opportunity should be given to furnish new security. It is apparent from the record that the writ of error must have been sued out for delay only. The suit was upon a policy issued by the insurance company to the Albro Company for the insurance of a cargo of mahogany and cedar wood on board the bark Commodore Dupont, against the perils of the sea and the barratry of the master of the bark at and from the port of Santa Anna, Mexico, to the port of New Orleans. The bark was driven on the bar at Santa Anna and wrecked in a severe gale while loading, and her cargo was cast on the sea and driven ashore. While in this condition the cargo was sold, and the proceeds, which were but small, after deducting charges and expenses, paid over by the master to the Albro Company. In the petition the loss of the vessel and her cargo is averred, and also the sale of the cargo under the orders of the port authorities at Santa Anna. In the answer the loss of the vessel was admitted, but it was insisted, by way of defense, that due diligence was not used by the master in saving the cargo and forwarding it to its place of destination as the policy required. Upon the trial "the plainKiffs introduced evidence tending to show that the sale of the insured cargo v.58-19 307 by the master was made under such circumstances as constituted a necessity for making the same, and rendered the act of the master in making the same the act of the defendant, in that, under the law of insurance, the authority therefor would be implied. The defendant introduced evidence tending to establish the absence of those circumstances which so gave authority to the master to make such sale, and tending to show the failure on his part to seasonably communicate with the owners and underwriters; and the same evidence, introduced by the defendant, besides being applicable to the two issues, as stated above, tended further to establish that the act of the master in making the said sale of the insured cargo was an act of barratry, in that it was made, and especially was made, in time and manner, knowingly contrary to his best judgment and to the injury of whomsoever it might concern; and all the evidence tending to establish a barratrous sale came from the defendant. "The court instructed the jury that, under the pleadings, the evidence which had been adduced before them in the cause authorized them to inquire and find-First. Whether the sale by the master was made under such circumstances as, according to the principles or rules in the law of marine insurance, (which were stated to the jury,) made the act of sale on the part of the master the act of the underwriters, and that if upon this question they found for the plaintiff, then the defendant's liability was established. Secondly. The court instructed the jury that if they found that according to the principles and rules of marine insurance (which had been stated to them) the act of sale on the part of the master was not the act of the underwriters, but they found that, while he had exceeded his authority, he had acted in good faith, then the defendant was discharged from all liability. Thirdly. The court further instructed the jury that if they found that according to the rules and principles of marine insurance (which had been explained to them) the act of sale by the master was not the act of the underwriters, the defendants, still, if they found that such sale was barratrously made, i. e.,*was an act of barratry, which was defined to them by the court, then also the liability of the defendant was established. No exception was taken by the counsel for the defendant to the rules or principles of law by which the court, in its instructions, had stated they must determine the question of implied authority from the defendant on the part of the master to make the sale, nor to the test by which the jury was to determine whether an act of barratry had been committed. But the counsel for the defendant, before the jury retired to deliberate upon their verdict, reserved an exception to that part of the charge of the court alone by which the court submitted the question of barratry or no barratry to the jury, in the instruction numbered third." We are unable to discover even the semblance of an error in the part of the charge excepted to. The petition presented distinctly the question of the liability of the insurance company, under its policy, for the loss of the cargo, which had been stranded by a peril of the sea, and sold by the master of the vessel. The defense was, in effect, that the cargo ought to have been gathered up after the stranding, and forwarded to the place of destination. Upon the issue thus raised by their pleadings, the parties went to trial, and testimony was submitted to the jury on both sides. That of the insurance company tended to show, not only that the sale was not justified by the circumstances, but that, in making the sale, the master was guilty of barratry. The court told the jury, in substance, that, if the master, acting in good faith, sold the cargo when he ought not to have done so, the insurance company would not be bound by his sale; but, "if the sale was barratrously made, i. e., was an act of barratry," the company must make good the loss; and this clearly because it had insured against the barratry of the master as well as the perils of the It is true that the parties did not, in their pleadings, rely upon the barratry either as a ground of action or of defense, but the insured did sue for sea. 609* the loss occasioned by the perils of the sea and the sale by the master, and the insurance company, in attempting to prove that the sale was not justi-☺ fiable under the circumstances, gave evidence tending to prove that it was *barratrously made. It was upon this evidence coming from the insurance company that the court told the jury that the barratry of the master would not relieve the company from its liability in this action for the loss which followed from the stranding by a peril of the sea, and the subsequent barratrous sale. Certainly, we are not called upon to retain a case on our docket for argument upon such a question. There was sufficient color of right to a dismissal to make it proper for us to entertain a motion to affirm with the motion to dismiss. The motion to dismiss is denied, but that to affirm is granted. Affirmed. *527 (112 U. S. 526) BRITTON and others v. THORNTON.1 1. DEVISE-EXECUTORY Devise. (December 15, 1884.) Under a devise to one person in fee, and in case he should die under age and without children to another in fee, the devise over takes effect upon the death at any time of the first devisee under age and without children. 2. SAME-CONSTRUCTION. A testator devised to E., daughter of his son N., a parcel of land in fee, provided that should E. die in her minority, and without lawful issue then living, the land should revert and become a part of the residue of his estate; devised other land to his son W. for life, and to J., son of W., in fee, with a like proviso; gave to his widow certain real and personal property for life; and devised the residue of his estate to his executors, and directed that the income be suffered to accumulate until his eldest grandchild, then living, should attain the age of 21 years, or until the decease of his son W., whichever should first occur, and then the whole to be equally divided among all his grandchildren then living, and in making such division the amount of the devises to J. and to E., according to an estimate of their present value, to be made by three appraisers, to be charged to them as part of their respective shares. Held, that the estate of E. in the land specifically devised to her was divested by her dying under age and without issue, though after the deaths of the testator and of W. 3. STATE STATUTE-TWO VERDICTS CONCLUSIVE OF TITLE-RULE OF PROPERTY. A statute of a state, enacting that two concurring verdicts and judgments in ejectment shall be conclusive of the title, establishes a rule of property in land within the state, and binds the courts of the United States. 4. SAME-PENNSYLVANIA STATUTE OF APRIL 13, 1807. Under the statute of Pennsylvania of April 13, 1807, enacting that two concurring verdicts and judgment thereon between the same parties in ejectment shall be conclusive and bar the right, one judgment on a special verdict is not conclusive of any fact found by that verdict, and two verdicts and judgments are not conclusive upon a title not therein adjudicated. In Error to the Circuit Court of the United States for the Western District of Pennsylvania. George Shiras, Jr., for plaintiff in error. C. E. Boyle, for defendant in error. GRAY, J. This was an action of ejectment brought on April 12, 1880, in the court of common pleas of the county of Fayette and state of Pennsylvania, by John Russell Thornton, a citizen of that state, against George A. Wilson, a citizen of Ohio, and William Britton and George E. Hogg, citizens of Pennsylvania, his tenants at will; and removed by Wilson into the circuit court of the United States for the Western district of Pennsylvania. At the trial in that court, before a jury, both parties claimed title under the will of Joseph Thornton, who died on October 25, 1839, seized of the land; the plain 18. C. 8 Fed. Rep. 308. •529 *528 tiff as his surviving grandchild, and the defendants through Eliza Ann Thornton; and the following facts were admitted: Joseph Thornton's will, which was duly admitted to probate, besides devising certain real and personal property to his widow for life, directing his executors to pay at their discretion to his son Nelson the sum of $365 a year during his life, and making other devises and bequests, contained the following: "Item: I give and devise to my son William S. Thornton,*during his natural life, all that body of land lying in Luzerne township, Fayette county, on which he now lives, consisting of four parcels adjoining each other, which I purchased of Samuel McMullin, Nicholas Miller, Eliza Coleman, and the heirs of Abraham Merritt, to hold the same without impeachment of waste." "Item: To my grandson, Joseph Thornton, son of my said son William, I give and devise all the lands in the preceding item devised to his father, to possess and enjoy the same from the death of his father, forever: provided, that [if] the said Joseph die in his minority, and without lawful issue then living, the said land shall revert and become a part of the residue and remainder of my estate hereinafter disposed of." "Item: To Eliza Ann Thornton, natural daughter of my said son Nelson, I give and devise all that plantation bought of Andrew Porter and John Davis, lying on the Monongahela river, in Luzerne township, adjoining Eliza Crawford, Thomas Neelan, Joseph Crawford, and Joseph Crawford, Jr., containing, as is supposed, two hundred and sixty acres, besides allowances, be the same more or less, she paying out of the rents to my executors the sum of three hundred and sixty-five [dollars] annually during the life of my said son Nelson: provided, that should the said Eliza Ann die in her minority, and without lawful issue then living, the land hereby devised shall revert and become a part of the residue of my estate hereinafter disposed of." "Item: All the rest and residue of my estate not heretofore disposed of I give, devise, and bequeath to my executors; and I do hereby authorize and empower them, or the survivor of them or their successors in the said office, to sell and convey any and all of my real estate not herein fully disposed of, if, in their discretion, they shall think it for the advantage or convenience of my estate, and whenever they may think proper so to do; and in the mean time to receive the rents, issues, and profits of the real estate, and the proceeds of the personal, and the dividends of all stocks, and apply them to the payment of the legacies of this my will. "It is my will that the rents, issues, and profits of the real estate given to my executors, or the proceeds thereof, if sold, and the dividends of all my estate given to them, or the proceeds, if sold, and the proceeds of all other personal estate not required to pay the debts and legacies heretofore given, be vested by my executors in stocks or put out at interest and suffered to accumulate until my eldest grandchild then living shall attain the age of twenty-one years, or until the decease of my son William, whichever shall first occur, and then the whole to be equally divided among all my grandchildren then living, and the children of any who may be dead leaving issue, such issue to take by representation. The said Eliza Ann, natural daughter of my son Nelson, to be considered a grandchild, and to be entitled to share as such; and in making such division the amount of the devise made to Joseph, son of my son William, and to the said Eliza Ann, according to an estimate of their present value, to be made by three men appointed by my executors or by the orphans' court, to be charged to them or their children as part of their respective shares." William S. Thornton died in 1852, before any of the testator's children had attained the age of 21 years. Eliza Ann Thornton, on January 1, 1856, married John S. Krepps, and died on January 23, 1857, without lawful issue then living, and leaving her husband her heir at law; and he, on November 16, 1872, conveyed the land in dispute to Britton, who, on March 8, 1873, conveyed an undivided half of it to Hogg; and on February 8, 1878, Britton and Hogg conveyed the whole to the defendant Wilson. Krepps died on November 16, 1873. The plaintiff, John Russell Thornton, was the sole sur viving grandchild and heir at law of the testator, all the other grandchildren having died without issue. There was conflicting evidence of the date of Eliza Ann's birth; the evidence for the plaintiff tending to show that it was February 12, 1836, and the evidence for the defendants tending to show that it was February 12, 1835. The defendants requested the court to instruct the jury that, William S. Thornton having died in the life-time of Eliza Ann, she, as grandchild of the testator, and by virtue of the residuary clause in his will, became entitled ' in fee to the land in dispute, and that the defendants, having succeeded to her title, were entitled to a verdict. The court refused this instruction, and afterwards instructed the jury that the case turned upon their determination of the contested question of fact, whether she died before or after attaining the age of 21 years; and that if she died under that age, and the plaintiff was the only living descendant of the testator, he was entitled to recover. The defendants put in evidence a certified copy of a record of the circuit court at May term, 1878, of an action of ejectment between the same parties for the same land, in which a special verdict was returned finding the facts above admitted, and also that Eliza Ann at the time of her death was above the age of 21 years, and a judgment was rendered thereon, which was still in force and unreversed. The defendants requested that the jury might be instructed that that verdict and judgment were conclusive evidence that Eliza Ann was of age at the time of her death, and therefore the verdict in this case must be for the defendants. This instruction was refused. The defendants then put in evidence a certified copy of a record of the court of common pleas of Fayette county at March term, 1858, of an action of ejectment for the same land, brought by Joseph Thornton's executors against Krepps, (under whom these defendants claimed title,) by which it appeared that a verdict was returned for Krepps under an instruction of the court that he was entitled to possession as the surviving husband of Eliza Ann, and judgment was rendered thereon, which was still in full force and unreversed. The defendants requested the court to instruct the jury that the verdicts and judgments in the two cases, records of which had been put in evidence by them, availed in law to conclude the controversy, and the verdict in this case should be for the defendants. The court refused this instruction, because by the record of 1858 it appeared that the only matter determined was that Krepps, as surviving husband of Eliza Ann, took a life estate as tenant by the curtesy, upon any construction of the will of Joseph Thornton, and whether she died under or above the age of 21 years. *The defendants excepted to the refusals to instruct and to the instructions given in this case, and, a verdict being returned for the plaintiff, sued out this writ of error. "The question which lies at the foundation of this case is what estate Eliza Ann Thornton took in the land which Joseph Thornton specifically devised to her, "provided that, should the said Eliza Ann die in her minority, and without lawful issue then living, the lands hereby devised shall revert and become part of the residue of my estate hereinafter disposed of." By this specific devise, Eliza Ann Thornton took an estate in fee, defeasible by an executory devise over. That the estate devised to her, though without words of inheritance, was not an estate for life merely, but was an estate in fee, is not disputed, and is apparent from the description of the subject of the devise as "that plantation bought of Andrew Porter and John Davis;" from the charge, imposed upon her personally, to pay an annuity out of the rents; and *531 *532 |
