Dawson's Lessee v. Godfrey. 4 C.

ciple is recollected which obliges the creditor to make this election immediately. After having made it he is bound by it; but until he makes it he is free to credit either the bond or simple contract.

[ * 321 ]

Unquestionably, circumstances may occur, and perhaps did occur in this case, which would be equivalent to the declaration of his election on the part of the debtor, and, therefore, the court was correct in instructing the jury, that if they should be satisfied that the payments were understood to be made on account of the goods sold at vendue, they ought to apply them to the discharge of that account; but in declaring that the election, which they supposed to devolve on the plaintiff, if the application of the money was not understood at the time by the parties, was lost if not immediately exercised, that court erred.

Their judgment, therefore, must be reversed, and the cause remanded for a new trial.

DAWSON'S LESSEE v. Godfrey.

4 C. 321.

A person born in England before the year 1775, and who always resided there, and never was in the United States, is an alien, and could not, in the year 1793, take lands in Mary land by descent from a citizen of the United States.

ERROR to the circuit court of the District of Columbia, sitting at Washington.

Russel Lee, a citizen of the United States, in the year 1793, died seized in fee of a tract of land called Argyle, Cowall, and Lorn, situated in that part of the District of Columbia which was ceded to the United States by the State of Maryland. Mrs. Dawson, the lessor of the plaintiff, would be entitled to the land by descent, unless prevented by the application of the principle of alienage. She was born in England before the year 1775, always remained a British subject, and was never in the United States.

The court below instructed the jury that she was an alien, and could not take the land by descent from Russel Lee, in the year 1793. [*322] *JOHNSON, J.,1 delivered the opinion of the court as follows:

This case rests upon the single question, whether a subject of Great Britain, born before the declaration of independence, can now inherit lands in this country? The general doctrine is admitted, that in the State of Maryland, in which the land lies, an alien cannot take by descent; but it is contended, upon the doctrine laid down in Cal

1 The Judges present were, CHASE, JOHNSON, LIVINGSTON, and TODD.

Dawson's Lessee v. Godfrey. 4 C.

vin's case, that the rights of the antenati of Great Britain formed an exception from the general rule. The point decided in the case of Calvin was, that a Scotsman, born after the union, could inherit lands in England. It is evident that this case is not directly in point, for the only objection here to the right of recovery did not exist in Calvin's case, as, whether in England or in Scotland, he was equally bound in allegiance to the king of Great Britain. It would be a contradiction in terms to contend that Dawson or his wife ever owed allegiance to a government which did not exist at their birth. It is upon a supposed analogy, therefore, and the reasoning of the judges in Calvin's case, that the argument for the plaintiff is founded. In the two cases of Coxe and M'Ilvaine and Lambert and Paine, in this court, this doctrine was very amply discussed, and this case is submitted upon those arguments. The counsel there contended, that the relation of the postnati of Scotland (after the union) to the subjects of Great Britain, was identically the same with the antenati of Great Britain (before our Revolution) to the citizens of this country, and that the community of allegiance at the time of birth, and not the existing state of it when the descent is cast, is the principle upon which the right to inherit depends.

The latter proposition presents the weak point of their argument, for the community of allegiance at the time of birth [* 323 ] and at the time of descent both existed in Calvin's case.

And if the court in their argument expressed opinions which appear to go to the length contended for by the counsel, they must be considered as mere obiter opinions, since the decision of the cause did not depend upon them. We have no doubt that the correct doctrine of the English law is, that the right to inherit depends upon the existing state of allegiance at the time of the descent cast. And that the idea that it depends upon community of allegiance at the time of birth, is a consequence that follows from the doctrines that a man can never put off his allegiance, or be deprived of the benefits of it but for a crime. Community of allegiance once existing must, upon these principles, exist ever after. Hence it is that the antenati of America may continue to inherit in Great Britain, because we once owed allegiance to that crown. But the same reason does not extend to the antenati of Great Britain, because they never owed allegiance to our government. This idea will be best elucidated in the following manner. If an action be commenced in England by an antenatus of America for the recovery of land, the plea of alien born could not be maintained, because inconsistent with the fact; nor would a plea of the severance of these States avail the defendant, because the act of his government, independent of any crime of his own, does not deprive the plaintiff of his civil rights, although it may

Mountz v. Hodgson. 4 C.

release him from the obligation of allegiance. But if a suit of the same kind is instituted here by an antenatus of Great Britain, the plea of alien born could be maintained, for the plaintiff never owed allegiance to our government. To avoid it he would be put to a special replication, by which he must of necessity acknowledge the truth of the plea, and set forth circumstances which would amount to a recognition of his never having been a party in our social compact. Much of the difficulty in satisfying the mind on this subject vanishes upon a just view of the nature of the right of inheritance. Gentlemen have argued upon it as if it were a natural and perfect right; whereas it has its origin in, and is modified to, infinity by the laws of society, in exercise of the right of territorial jurisdiction. To be entitled to inherit in the State of Maryland, a right should be made out under the laws of that State. As the common law, [324] which is the law of Maryland on this subject, *deprives an

alien generally of the right of inheriting, it is incumbent upon the plaintiff to establish some exception in favor of his case. But I know of no exception, at common law, which gives the right to inherit distinctly from the obligation of allegiance, existing either in fact or in supposition of law.

Judgment affirmed.

7 C. 603; 8 W. 464; 3 P. 99; 5 P. 304.

MOUNTZ and others v. HODGSON and THOMPSON.

4 C. 324.

THIS was a writ of error to the circuit court for the District of Columbia, founded on a refusal by that court to quash a ca. sa., issued upon a judgment, certified into that court by two justices of the peace, under an act of assembly of Maryland.

F. S. Key, and Marshall, for the plaintiff.

Jones, for the defendant.

[ *327 ] * MARSHALL, C.J. The majority of the court is of opinion that the writ of error must be quashed, this court not having jurisdiction.

The refusal of the court below to quash the execution on motion, is by some of the judges supposed not to be a judgment Others are of opinion

[*328] to which a writ of error will lie.

that a writ of error will lie to that decision of the court, but

that this writ of error is not to the judgment of the circuit court, but to that of the justices.

Writ of error quashed.

9 W. 576.

Blaine v. The Ship Charles Carter. 4 C.

BLAINE v. The Ship CHARLES CARTER, and DONALD and BURTON and others, Claimants.

4 C. 328.

If the holder of a bottomry bond omits to enforce it, until the vessel has made another voyage, after the completion of the voyage mentioned in the bond, an execution levied on the vessel, before it has been arrested upon admiralty process to enforce the bond, displaces the bottomry lien.

An execution issued by a circuit court before the expiration of ten days after judgment, in a case open to a writ of error, is not void, and the marshal may justify under it; if voidable the remedy is to apply to the court to set it aside.

APPEAL, from the circuit court of the United States for the district of Virginia, in a suit in admiralty. The nature of the case, and the facts upon which the court decided, appear in its opinion.

C. Lee, for the plaintiff.

P. B. Key, for the defendant.

CHASE, J.,' delivered the opinion of the court.

[* 331]

The libel in this case was filed upon two instruments of writing purporting to be bottomry bonds, the one executed by the master in a foreign port, the other by the owner in a port of the State of Virginia, in which State the libel was filed.

The voyage of the former bond terminated in Virginia, and the vessel has since made two voyages. The latter instrument was on a voyage which terminated in London, and the vessel has since made a voyage to this country. Upon her return here, and before the warrant of the admiralty was seryed, the executions were levied upon her which form the groundwork of the claim interposed by Donald and Burton.

The ship has been sold under the order of the court [332] below, and the question is, who has the preferable claim to the money now lying in the marshal's hands. On the validity of the bond of the master there can be no question. It is acknowledged by counsel to possess all the requisites of a good bottomry bond. But it was contended that it was satisfied by the freights, which it appears Blaine was in the receipt of; and if not satisfied, was fraudulently upheld to the prejudice of general creditors. In addition to the objections taken to the first bond, it is further contended against

1 Marshall, C. J., having decided the case in the circuit court, did not give an opinion here. Cushing, J., was absent.

Blaine v. The Ship Charles Carter. 4 C.

the second, that it wanted a sufficient bottomry consideration in part or in the whole. The court think it unnecessary to give a particular consideration to the several objections above stated. A satisfactory conclusion on the rights of the parties may be drawn from other principles, on the nature and effect of the contract of bottomry.

A bottomry bond made by the master vests no absolute indefeasible interest in the ship on which it is founded, but gives a claim upon her which may be enforced with all the expedition and efficiency of the admiralty process. This rule is expressly laid down in the books, and will be found consistent with the principle of the civil law, upon which the contract of bottomry is held to give a claim upon the ship. In the case of a bottomry bond executed by an owner in his own place of residence, the same reason does not exist for giving an implied admiralty claim upon the bottom, for it is in his power to execute an express transfer or mortgage. There is strong reason to contend that this claim or privilege shall be preferred to every other for the voyage on which the bottomry is founded, except seamen's wages. But it certainly can extend no further. Had the warrant of the admiralty been first served upon the ship, there might be some ground to contend that this court ought not to divest that possession in favor of executions served at a subsequent day, at least to the prejudice of the bond executed by the master. But as the executions in this case were levied before the service of the warrant, and so long after the bonds became due, the owners of the ship had lost that possession, upon which alone the warrant of the admiralty could operate, after losing the right of preference.

[ * 333 ]

Some objections have been made to the validity of these executions, on the ground of their having issued previous to the day on which by law they ought to have issued. On this point the court will give no opinion. If irregular, the court from which they issued ought to have been moved to set them aside; they were not void, because the marshal could have justified under them, and if voidable, the proper means of destroying their efficacy have not been pursued.

The decree of the circuit court is affirmed, and the money ordered to be paid over to the execution creditors.1

10 P. 449; 6 H. 344.

1 These executions were issued by a circuit court of the United States on the 7th of December, upon judgments recovered on the next preceding 30th of November, for upwards of $2,000.