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Columbian Insurance Company v. Ashby. 4 P.

law. We do not, however, in the present case, see any evidence which would have fairly warranted the jury in finding that the abandonment had been revoked. The injury was such as to occasion almost an actual total loss of the vessel; and there could have been no possible inducement for the assured to revoke the abandonment. There is no evidence to justify the conclusion that Stribling was acting for his own benefit, and not for that of the underwriters. The assured, by operation of law, became, after the abandonment, the agent of the underwriters, and was bound to use his utmost endeavors to rescue from destruction as much of the property as he could, so as to lighten the burden which was to fall on the underwriters. The assured had received no information from the underwriters whether they accepted or refused the abandonment. Nor did Sanderson, who professed to act as their agent, communicate any information to Stribling on that subject; and it would seem from the testimony of Thorborn that the conduct of Sanderson was calculated to cast some suspicion upon his motives. He says, "he then thought, and still thinks, the course pursued by him must have been designed to perplex and embarrass the persons who were engaged in the management of the affairs of the vessel; since his letter was not delivered until the sale had * commenced, and no authority [*144 ] was shown by him from the defendants to make arrangements for getting the vessel off, or to defray the expense that had already been incurred on her account." Although Stribling knew Sanderson as Secretary of the Columbian Insurance Company, he could not thereby know that he was clothed with authority to bind the company by whatever arrangement he should make. His authority as secretary did not clothe him with any such power. It is true Stribling did not demand of him to show his authority from the company, and this might be considered as open to the conclusion that such authority was admitted; but all this was matter for the consideration of the jury, and the court could not assume that he was or was not authorized to bind the underwriters.

In the case of the Chesapeake Insurance Company v. Stark, 6 C. 272, this court lays down the general rule, that if an abandonment be legally made, it puts the underwriter completely in the place of the assured, and the agent of the latter becomes the agent of the former; and that the acts of the agent, interfering with the subject insured, will not affect the abandonment. But the court takes a distinction between the acts of an agent and the acts of the assured; that in the latter case, any acts of ownership by the owner himself, might be construed into a relinquishment of an abandonment, which had not been accepted.

Columbian Insurance Company v. Ashby. 4 P.

The court in that case did not say, and we think did not mean to be understood as intimating, that every such act of ownership must necessarily, and under all possible circumstances, be construed into a relinquishment of an abandonment. The practical operation of so broad a rule would be extremely injurious.

It would deter owners from interfering at all for the preservation of the subject insured, and leave it to perish, for fear of prejudicing their rights under the abandonment. All such acts must be judged of from the circumstances of each case. The quo animo is the criterion by which they are to be tested.

If, in this case, Stribling, the owner, had become the purchaser of the brig, and had got her off, and fitted her up, it would [* 145] * have afforded very strong, if not conclusive, evidence of a

relinquishment of the abandonment. But such was not the fact; and whatever he did appears to have been done in good faith, and with a view to the preservation of the property. But this case is very distinguishable from that of the Chesapeake Insurance Company v. Stark. There, the underwriters had refused to accept the abandonment, and the court applied the rule to that case. In such a case, the assured is at liberty to revoke the abandonment. But here the owner did not know whether the underwriters would refuse or accept the abandonment. No answer had been received to the letter of abandonment, and the assured was left in uncertainty as to his right of revocation. We think, therefore, that there was no act of ownership exercised by Stribling, which the law would pronounce a revocation of the abandonment, or which called upon the court below to instruct the jury that they ought to infer a revocation from any such acts.

The other circumstance relied upon is, that Sanderson, who professed to act as the agent of the underwriters, offered to supply the money necessary to get the vessel off, and put her in a situation to pursue the voyage.

What effect this offer would have had upon the right of the assured to abandon, until the experiment to get off the vessel had been tried, provided such offer had been unconditional and made before the abandonment, either by the underwriters themselves, or by an agent fully authorized for that purpose, is a question upon which we give no opinion; the case does not require it. The authorities on this point do not appear to be in perfect harmony; 6 Mass. 484; 5 Serg. & Rawle, 509; 3 Mason, 27; 2 Term Rep. 407; 2 Wash. C. C. Rep. 347.

The present case, however, is not accompanied with these circumThe abandonment here had actually been made, before the

stances.

Harris v. D'Wolf. 4 P.

offer to pay the expenses of getting off the vessel; and no answer from the underwriters had been received, nor did Sanderson undertake to decide that question for them. Although he professed to act as the agent of the underwriters, he showed no authority for

*

that purpose, and one of the witnesses swears that he [ *146] thought the course pursued by him was designed to perplex

the proceedings in relation to the vessel; and his letter to Thorburn, making the offer of the money, has this condition: "I reserve to the company all right of defence, in case they should not be liable for any part of the expenses attending the business.

Under such circumstances, it is very clear the assured could not be required to waive an abandonment, which from any thing that he knew might, at that time, have been accepted; in a case too where there was a clear and undeniable right to abandon.

The court below did not, therefore, err in refusing to instruct the jury that they ought to infer from the evidence that the abandonment had been revoked. The judgment must be affirmed.

This cause came on to be heard on the transcript of the record from the district court of the United States for the District of Columbia, holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum.

SAMUEL D. HARRIS, Marshal of the United States for the District of Massachusetts, Plaintiff in Error, v. JAMES D'WOLF, JR., Defendant in Error.

4 P. 147.

The cases of Conard v. The Atlantic Insurance Co., 1 P. 386, and Harris v. Dennie, 3 P. 292, confirmed.

THE case is stated in the opinion of the court. It was submitted without argument.

[*148]

* MARSHALL, C. J., delivered the opinion of the court. This is a writ of error to a judgment of the court of the United States, for the first circuit and district of Massachusetts, in an action of replevin claiming the restitution of twenty-three cases of silks which had been attached at the suit of the United States, against George D'Wolf. The property was claimed by the plaintiff in replevin, under a deed dated on the 19th of November, 1822, executed by

Harris v. D'Wolf. 4 P.

George D'Wolf and John Smith, in which they acknowl[ *149] edged themselves to be severally indebted to the said * James D' Wolf, in large sums of money, and agreed, in consideration thereof, and in consideration of other advances to be made by the said James D'Wolf, to convey, and did convey, to the said James D'Wolf, the ship Octavia, then lying in the port of New York nearly ready for sea, and the three brigs Quill, Arab, and Friendship, then actually at sea, their tackle, &c., and the proceeds and investments of their cargoes, &c., which said vessels and cargoes were the property of the said George D'Wolf and John Smith. To this conveyance a condition was annexed, that it should be void on the payment to James D'Wolf of the money which should be due to him; on the failure to pay which it should be lawful for the said James D'Wolf, at any time or times, to enforce the pledge by process, and arrest of the premises or any part thereof, in all courts or places whatsoever, and cause the same to be sold, and the proceeds to be applied in satisfaction of the moneys which may then be due from them, or either of them. The silks were part of the return cargo of one of these vessels.

The defendant pleaded that the said silks were not the property of the plaintiff, but of George D'Wolf and Smith; and justified the taking thereof, as marshal of the district, by virtue of a writ of attachment sued out of the court of the United States for the said district, in which suit the United States obtained judgment against the said George D'Wolf.

At the trial, the plaintiff proved his deed of assignment, that the silks were part of the proceeds of the cargoes of the ship Octavia and brig Arab, that he had used all proper means to take possession of them, and that they were attached by the defendant, as marshal, by virtue of process sued out by the United States. He also proved debts against George D'Wolf and John Smith, severally, on account of his advances for them, which were intended to be secured by the deed of assignment, to a very large amount.

The defendant proved that the said silks were imported into the United States, consigned to George D'Wolf and John Smith, and that, at the time of the importation of said silks, said George D'Wolf

and John Smith were indebted to the United States in bonds [ *150] given by them respectively for * duties which were then due and unpaid, to an amount much exceeding the value of the silks replevied. The defendant also proved that, at the time the deed of assignment was executed, the ship Octavia lay at New York, with her cargo on board, nearly ready for sea; but that possession was not delivered, nor were the bills of lading indorsed or delivered to the

Harris v. D'Wolf. 4 P.

plaintiff. The cargoes were consigned to the several masters for sales and returns.

Many other circumstances were given by the plaintiff in evidence, to show the fairness of the deed of assignment; which were met on the part of the defendant by other circumstances, on which he relied to show that, in point of law, it was fraudulent. These do not affect the opinions given by the circuit court, to which exceptions were taken; and therefore are not recited.

After the testimony was closed, the defendant's counsel moved the court to instruct the jury that the deed of assignment was fraudulent as to creditors, and void. This instruction the court refused to give; but left it to the jury to determine, upon all the evidence of the case, whether the said deed was executed with an intent to defraud or delay the creditors of the said George D' Wolf and John Smith, and if so executed, then the same was fraudulent, and void as to such creditors.

As the whole question of fraud was submitted to the jury, it is incumbent on the plaintiff in error, if he would support this, exception, to show some defect in the deed itself, which makes it absolutely void as to creditors, whatever may be the fairness of intent with which it was executed. He relies on the fact that possession of The Octavia was not delivered as making the deed of assignment absolutely void.

This question was decided, upon full consideration, in the case of Conard v. The Atlantic Insurance Company, 1 P. 386, and this court is well satisfied with that opinion.

The counsel for the defendant also prayed the court to instruct the jury that, although the deed of assignment might be valid, it could not transfer a right to the proceeds of the outward bound cargoes; which instruction the court refused to give.

* This question also is decided in the case of Conard v. [* 151 ] The Atlantic Insurance Company.

The counsel for the plaintiff also moved the court to instruct the jury, that the failure of George D'Wolf and John Smith to deliver to James D'Wolf the copies of the bills of lading which were in their possession, severally, when the bills of lading were executed, leaves the property subject to the attachment of creditors who had no notice of the deed. This instruction the court refused to give.

In the case of Conard v. The Atlantic Insurance Company, the court determined that a deed of assignment, such as was executed in this case, was capable of transferring the right to the proceeds of the outward cargo as between the parties; of consequence, such transfer gives the assignee a right to take those proceeds and hold

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