Preston v. Tremble. 7 C.

It is contended that since the Act of Limitations runs against a person beyond sea, from the time of his coming into the country, so from analogy it ought to run against a non-resident merchant from the time of his coming, though for a mere temporary purpose, within the country.

The court cannot assent to the correctness of this reasoning. To render it applicable, the rejoinder ought to have averred that the plaintiff had become a resident of the State of Maryland more than three years before the institution of the suit. Not having done so, the words of the exception have never ceased to be applicable to the plaintiff; and, consequently, the statute has never commenced to run.

It is the opinion of this court that the circuit court erred in overruling the demurrer of the plaintiff to the rejoinder of the defendant in this cause, and that the judgment be reversed and annulled, and the cause remanded, with instructions to render judgment on the said demurrer in favor of the plaintiff, and that further proceedings may be had therein according to law.

Judgment reversed.

PRESTON V. TREMBLE.

7 C. 354.

If an equitable title be merged in a grant, the party has no relief in equity.

APPEAL from a decree of the circuit court of the United States, for the district of East Tennessee, dismissing the plaintiff's bill upon demurrer, for want of equity.

The bill stated that Preston, the complainant, had title to a tract of land in the State of Tennessee, but the defendant, Tremble, fraudulently and deceitfully entered into it, and holds him out.

*In setting forth the title it is stated, that the land for- [* 355 ] merly lay within the State of North Carolina, during which time, one Ephraim Dunlop made an entry for the land in regular form, paid the purchase-money to the State, and performed every other requisite to complete the contract; but before a patent was obtained, the legislature of North Carolina passed a law, defining the limits of the Indian boundary, declaring all entries and surveys already made within those limits, to be null and void, and directing the entry-takers to refund all moneys received therefor. That Dunlop never received back the purchase-money, nor consented to annul the contract. That the law of North Carolina, rescinding the contract, was void. That Dunlop afterwards obtained a warrant to survey the land, and ob

Brig Penobscot v. The United States. 7 C.

tained a patent therefor, from the State of North Carolina, and afterwards conveyed the land to John Rhea, who conveyed to Preston, the plaintiff.

P. B. Key, for plaintiff in error.

[ * 356 ]

*

MARSHALL, C. J. If your title is good at law, you have no case in equity. If you have any title it is at law. If you have no title at law, you can have none in equity. The equitable estate is merged in the grant.

This is an attempt to substitute a bill in equity for an action of trespass.

Decree affirmed.

Brig PENOBSCOT v. THE UNITED STATES.

7 C. 356.

Under the non-intercourse laws in force, March 15, 1811, a vessel could not lawfully sail from a foreign port with a cargo, bound for a port of the United States, and come into the waters of the United States, for the purpose of making inquiry if she might land her cargo.

APPEAL from a sentence of the circuit court of the United States for the district of Georgia, condemning the brig for violation of the acts of March 1, 1809, (2 Stats. at Large, 528,) May 1, 1810, (2 Stats. at Large, 605,) and March 2, 1811, (2 Stats. at Large, 651,) and the President's proclamation of November 2, 1810. The defence was, that the vessel sailed from Castine, in the State of Maine, where she was owned, for Antigua, in December 1810, put into Turks Island, in distress, in February, 1811, took a cargo of salt there, and sailed for Savannah, intending to stand off and on to get information whether she could enter: that she arrived off Savannah March 15th, 1811, and that when approaching the port, a gale of wind forced her to seek for a harbor, for which she was making when seized by the revenue cutter.

P. B. Key, for the appellants.

J. R. Ingersoll, for the United States.

[* 358 ] 'Marshall, C. J., stated the opinion of the court to be,

Caze v. The Baltimore Insurance Co. 7 C.

that the vessel came at her peril; that she was bound to get information; but was negligent in not calling at Amelia Island, and in not inquiring of the vessel which she spoke off the port of Savannah.

Sentence affirmed.

CAZE and RICHAUD V. THE BALTIMORE INSURANCE COMPANY.

7 C. 358.

Underwriters upon cargo are not liable to the owner for freight, in case of abandonment. Freight, pro rata itineris, is due only when there is a voluntary acceptance of the goods at an intermediate port.

ERROR to the circuit court of the United States for the district of Maryland, in an action of indebitatus assumpsit for freight. The case is stated in the opinion of the court.

Harper, for the plaintiffs.

Pinkney, attorney-general, for the defendants.

* STORY, J., delivered the opinion of the court, as fol- [*361 ] lows.

The present action is brought to recover freight pro [*362 ] rata itineris, under the following circumstances:

The plaintiffs were the owners of the ship Hamilton and cargo, and effected insurance of her cargo on a voyage from Bordeaux to New York. The sum of $11,000 was underwritten by the defendants -the sum of $10,000 at Philadelphia, and the residue of the value of the cargo ($1,986,) was left uninsured. During the voyage the ship and cargo were captured, carried into Halifax, and there condemned. The plaintiffs abandoned to the underwriters, and received payment for a total loss. An appeal from the sentence of condemnation was interposed and the sentence finally reversed, and the proceeds of the cargo, which had been previously sold by order of court, were paid over to the underwriters in proportion to the sums underwritten by them respectively.

We are all of opinion that the plaintiffs are not entitled to recover in the present action.

Schooner Jane v. The United States. 7 C.

In the first place, the court are satisfied that, as between the insured and the underwriter on the cargo of a ship, the latter is in no case responsible for the payment of freight, whether there be an abandonment or not. It is a charge on the cargo against which he does not undertake to indemnify the owner; and if authority be necessary to support the position, it is fully borne out by the doctrine of Lord Mansfield in Baillie v. Modigliani, Marshall, 728.

In the next place, we are all of opinion that no freight whatsoever was, under the circumstances of this case, due. Freight, in general, is not due unless the voyage be performed. Here, the ship and cargo never arrived at their port of destination, and of course the whole freight could not be due. Was a pro rata freight due? We think not. The whole class of cases resting on the authority of Luke v. Lyde, 2 Burr. 882, proceed on the ground that there is a voluntary acceptance of the goods themselves at an intermediate port; and not, as in the present case, a compulsive receipt from the hands of the admiralty after capture and condemnation, and ultimate re

storation upon the appeal. There is, in our judgment, no [* 363] equity to support such a claim; and although it receive countenance from some remarks incidentally thrown out in Baillie v. Modigliani, the current of more recent authority, as well as of principle, clearly points the other way.

It may be further added that, as between the insured and the underwriter, the existence of a lien on the cargo for freight does not vary the legal responsibility of the underwriter on such cargo after an abandonment.

The judgment of the circuit court is affirmed, with costs.

8 C. 39; 12 W. 383.

The Schooner JANE V. THE UNITED STATES.

7 C. 363.

In a prosecution against a vessel for violation of a law of the United States, it is not necessary to adduce positive testimony of the identity of the vessel. It is sufficient if the circumstances fully satisfy the judicial mind, of the fact charged.

APPEAL from a sentence of the circuit court of the United States for the district of Maryland, which condemned the schooner Jane for violation of the Non-intercourse Act, (2 Stats. at Large, 528.)

Schooner Jane v. The United States. 7 C.

Nicholson and Harper, for the appellant.

Pinkney, attorney-general, for the United States.

* WASHINGTON, J., delivered the opinion of the court, as [* 364 ] follows:

This was an information filed in the district court of the United States, for the district of Maryland, against the schooner Jane, and her cargo, for a breach of the law interdicting the commercial intercourse between the United States and Great Britain and France, and their dependencies. The particular charge alleged in the information is, that this vessel had imported into the port of Baltimore, from some place in the island of St. Domingo, a dependence of France, 1920 bags of coffee, in violation of the above law. To establish this charge two witnesses were examined on the part of the United States, who concurred in testifying that they were at Port au Prince, in the island of St. Domingo, from about the middle of August to the middle of September, in the year 1809, and that they saw lying there a schooner called The Jane, of Baltimore, Vezey, master. That her cargo consisted of flour, which she discharged at that place, and took in a quantity of coffee, in bags, and that she sailed from Port au Prince about the 10th of September.

One of these witnesses thinks that the name "Jane was painted on the stern of the vessel, but is not positive as to that fact; nor can either of the witnesses say that the vessel they saw at Port au Prince was the same which was seized by the collector of the port of Balti

more.

The seizure of the vessel and cargo, which are the subject of this controversy, was made between the 1st and 18th of October, 1809. Upon the above evidence, the district court dismissed the information, and ordered restitution of vessel and cargo. This writ of error is taken to the sentence *pronounced by the circuit [* 365 ] court, which, upon an appeal, reversed that of the district court, and condemned both the vessel and cargo. For the claimants it is contended, that the evidence in this case is merely presumptive, and is much too light to establish the fact, necessary to be made out, that the vessel seized by the collector of Baltimore is the same vessel which was seen by the witnesses at Port au Prince. If the latter part of the objection to the evidence be well founded it is fatal to the sentence, because although presumptive evidence is clearly admissible, and may of itself be sufficient to support, in many instances, even a criminal prosecution, yet the circumstances proved ought not only to harmonize with each other, but they ought in themselves to