United States v. Yorba, 68 U.S. (1 Wall.) 412

In support of his claim the respondent produced, from the archives of the former government, in the custody of the Surveyor-General of California, his petition to the governor for the land, the reference by him to the local authorities for information, and their reports on the subject; also, various proceedings had with reference to an adverse interest in the land, asserted by the widow of his deceased brother, and a p. 413draft or copy of the grant issued. He also produced the grant delivered to him, which was issued by Governor Pio Pico on the 15th of June, 1846. It is signed by the governor, and tested by his secretary of state; but neither the governor nor secretary were called to prove the execution of the grant. The genuineness of their signatures was proved by a third party, no objection being taken to its sufficiency at the time by the law agent of the United States, who was present at the examination of the witness.

“ The rights of the persons and property of the inhabitants of the territory over which the boundaries of the United States shall be extended will be amply protected by the Constitution and laws of the United States. An article, therefore, to secure those rights has not been inserted in the project; but should this be deemed necessary by the Mexican government, no strong objection exists against inserting in the treaty an article similar to the third article of the Louisiana treaty. It might read as follows: ‘ The inhabitants of the territory over which the jurisdiction of the United States has been extended by the fourth article of this treaty shall be incorporated into the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.’ In the event of the insertion of this article, it would be proper to add to it the following: ‘-Provided!, That all grants or concessions whatever of any lands made or issued by the Mexican government since the thirteenth day p. 415of May, one thousand eight hundred and forty-six, within the said territory, shall be absolutely null and void? The date might, if necessary, be changed from the day when Congress recognized the existence of the war to the month of September, 1846, when the American forces took possession of California.”*

But it may be objected that the tenth article of the treaty, which contained this declaration, was rejected by the Senate of the United States, and that, therefore, it is inoperative in a question of this kind. This objection misconceives the argument. If the invalidity of all grants of land in California made after May 13th, 1846, was urged on the ground of a treaty stipulation to that effect, the objection now made would be unanswerable. But it is not placed on that ground. Mexico was not willing to place it on that ground; neither are we. We place it on the ground of the fact, attested by Mexico herself. The rejection of the article of the treaty containing this statement of fact is, therefore, immaterial The fact still remains unchanged in all its original force, and with all its original consequences. Doubt on this point is dispelled when we learn the reason why the tenth article of the treaty was rejected. To the first clause of the first paragraph of the tenth article there was no objection. It simply declared the doctrine of international law in cases of the cession of territory, and was afterwards embodied in the treaty in another form. To the last paragraph containing the declaration quoted there could be, and there was, no objection on the part of the United States, because it was for their benefit, and was inserted, as we have seen, at the instance of our Secretary of State. The objection to the article, as a whole, was to another part of it, which stipulated for an extension of time in favor of the grantees of land in Texas, California, and New Mexico, under grants previously made, for the performance of the conditions contained p. 417therein, to take effect from the exchange of the ratifications of the treaty.

“ The third amendment of the Senate strikes from the treaty the tenth article. It is truly unaccountable how this article should have found a place in the treaty. That portion of it in regard to lands in Texas did not receive a single vote in the Senate. If it were adopted it would be a mere nullity on the face of the treaty, and the judges of our courts would be compelled to disregard it. It is our glory that no human power exists in this country which can deprive one individual of his property without his consent, and transfer it to another. If grantees of land in Texas, under the Mexican government, possess valid titles, they can maintain their claims before our courts 0 justice. If they have forfeited their grants by not complying With the conditions on which they were made, it is beyond the power of this government, in any mode of action, to render 1 ose titles valid, either against Texas, or any individual p. 418proprietor. To resuscitate such grants, and to allow the grantees the same period after the exchange of the ratifications of this treaty to which they were originally entitled, for the purpose of performing the conditions on which these grants had been made, even if this could be accomplished by the power of the government of the United States, would work manifold injustice. These Mexican grants, it is understood, cover nearly the whole of the sea-coast and a large portion of the interior of Texas. They embrace thriving villages, and a great number of cultivated farms, the proprietors of which have acquired them honestly by purchase from the State of Texas. These proprietors are now dwelling in peace and security. To revive dead titles, and suffer the inhabitants of Texas to be ejected under them from their possessions, would be an act of flagrant injustice, if not wanton cruelty. Fortunately, this government possesses no power to adopt such a proceeding. The same observations equally apply to such grantees in New Mexico and Upper California. The present treaty provides amply and specifically in its eighth and ninth articles for the security of property of every kind belonging to Mexicans, whether held under Mexican grants or otherwise, in the acquired territory. The property of foreigners, under our Constitution and laws, will be equally secure without any treaty stipulation. The tenth article could have no effect on such grantees as have forfeited their claims but that of involving them in endless litigation, under the vain hope that a treaty might cure the defects in their titles against honest purchasers and owners of the soil. And here it may be worthy of observation, that if no stipulations whatever were contained in the treaty to secure to the Mexican inhabitants, and all others, protection in the free enjoyment of their liberty, property, and the religion which they profess, these would be amply guaranteed by the Constitution and laws of the United States. These invaluable blessings, under our forms of government, do not result from treaty stipulations, but from the very nature and character of our institutions.”*

Saunders filed a bill in chancery, in the State District Court of Madison County, Ohio, to quiet the title to a tract of land in that commonwealth, in what is called the Virginia Military District, a region north and west of the Ohio, and which, by the act of cession of that territory to the United States and several acts of Congress, was reserved for the Virginia troops upon the Continental establishment of our Revolutionary war. The case was thus: In 1784, in the Book of Entries, kept by the proper officer in the State of Virginia, an entry, Ko. 70, was made in the name of David Ross & Co., on several military warrants, of one thousand acres of land on the Ohio River, in that part of Virginia then called the Green River Country, and now making Kentucky. The entry was surveyed, the survey returned and recorded; and on the 15th June, 1786, a patent for one thousand acres of lard was issued by the Governor of Virginia to Ross accordingly, the warrants themselves having apparently been returned into tlf land office in Virginia. The warrants had described no specific tracts, but were addressed to the surveyor, authorizing nun p. 425“ to survey and lay off, in one or more surveys,” the quantity “ set apart for officers and soldiers of the Commonwealth of Virginia.”

In 1790, Congress passed an act by which the soldiers of the Virginia line, on the Continental establishment, were authorized to obtain titles, on warrants issued to them, in what is now the State of Ohio; that is to say, in that region northwest of the Ohio River, between the rivers Little Miami and Scioto; and, in 1810, an entry was made in the office of the principal surveyor of the Virginia Military District in Ohio of six hundred and forty acres (the exact amount of Ross’s patent covered by Henderson’s prior grant), upon the same warrants upon which the patent issued in Virginia. On this entry a survey was made in 1817, which was returned and recorded; the Surveyor-General of the Virginia Military District within the State of Ohio certifying that the survey was founded on such and such warrants, which he specified by number and warrantee name, and adding, “That said warrants were entered originally in a thousand acre entry, Ko. 70, in the State of Kentucky, &c., and patented to said David Ross, by the State of Virginia, on the 15th of June, 1786; that said survey No. 70, i. e., six hundred and forty acres of it, is withdrawn, by reason of its having been lost by interference with Henderson’s grant, and entered and surveyed as above; that said warrants were never before satisfied; and that said patent on which this survey is founded is in my possession not satisfied.” . Thus things remained from 1816 p. 426till 1837, when a certain Samuel Saunders, the complainant below, entered a portion, to wit,, four hundred and twenty-eight acres of this same land, which had been surveyed to Ross; the entry being surveyed on the day it was made. On the 20th November, 1838, a patent was issued by the United States to this Saunders, complainant as above stated, and on the same day another patent to Niswanger, defendant below, in whom had become vested the entry and survey of Hoss. This patent to Niswanger, following the surveyor’s certificate already mentioned, stated the number of each one of the warrants; “the same warrants,”—it went on to recite—“ having been formerly located in the District of Kentucky, and patented by the Commonwealth of Virginia to the said David Ross, which has since been lost by interference with a prior claim, to wit, Henderson’s grant, and the said warrants withdrawn and relocated in the Virginia Military District of Ohio, upon which the said survey is founded.”

In this state of things, upon finding that 640 acres of the entry was in Henderson’s Grant, Ross was certainly entitled p. 430to relief in some form. The case was the case of a contract by vendor to convey, and a surrender of the contract upon a conveyance made and received in good .faith, but covering land not intended to be conveyed and Belonging to another. Under such a mistake, the contract not having been satisfied or merged in the conveyance—certainly not in a court of equity—our right was to have 640 acres of some other land belonging to Virginia and subject to entry. How then were we to be relieved ? There was some course fit to be pursued, and what course more fit than the one that was pursued. Ross appeared before the principal surveyor of the military district, and made proof to the satisfaction of that officer, that 640 acres of the entry of 1784, fell within Henderson’s Grant. Thereupon the surveyor allowed him to withdraw or amend the entry of 1784 to the extent of the 640 acres, and to re-enter the same quantity on vacant lands subject to entry in the State of Ohio. This was our entry of 1810, which is called a nullity. It is too late to question the verity of the memorandum that the former entry was “ withdrawn.” We must take it as established, that the entry of 1810 was made upon warrants never before satisfied.

* 7 Wheaton, 23. f 1 Peters, 636. J 6 Id., 666. p. 432the proviso was not protection for a survey made under a State line warrant. But our entry and survey were not made under State line warrants, nor without semblance of authority; and Ross was guilty of no fraud and was in the lawful pursuit of a valid title. In Galloway v. Finley* the next case, the court gave a larger operation to the proviso than had been stated in Lindsay v. Miller. Mr. Justice Catron, delivering the opinion, says : “ It is insisted for the appellant that the section had reference to imperfect and not void titles. The legislature merely affirmed a principle not open to question, if this be the true construction. Had an effective patent been issued, the government would not have had any title remaining, and a second grant v7ould have been void of course. Something more, undoubtedly, was intended than the protection of defective, yet valid, surveys and par tents. This is not denied, but the argument insists only irregularities were intended to be covered.......... The statute is general, including by name all grants, not distinguishing between void and valid, and the plainest rules of propriety and justice require that the courts should not introduce an exception, the legislature having made none.” * The learned judge then refers to Lindsay v. Miller, and adds, in reference to that case: “ But had the claimant been entitled to the satisfaction of his warrant in the military district, in common with ethers for whom the government held as trustees, the case might have been very different, even had the entry and survey been invalid.” McArthur v. Zhmf follows, and affixes the enlarged operation of the proviso as declared in Galloway v. Finley, and says, an entry and survey in the name of a deceased person, is within the scope of the proviso, notwithstanding such an entry and survey had been repeatedly held to be void.

* 12 Peters, 298. f 7 Howard, 264. + 2 Ohio State Reports, 219. p. 433veyed, whether the entries and surveys are valid or void, and has declared that any patent that may be obtained in virtue of a subsequent location of lands covered by a subsisting survey or patent, shall be null and void. Hence, it is of no consequence, whether the previous entry and survey have any validity or not. Admit that they are void, and that consequently the title both legal and equitable remains in the government, yet the subsequent location is a nullity, because Congress has so declared it.”

vol. I. 28 p. 434vey and before patent. No one would contend that in that State there could be a revival of the warrants after patent, and a consequent relocation. In Kentucky it has been held that there cannot be a withdrawal and relocation after survey, even before patent.* The language of Chief Justice Marshall in one case,f is striking. He says, “ The military warrants to which these questions relate, originate in the land law of Virginia. The question whether a warrant completely executed by survey can be withdrawn and so revived by the withdrawal as to be located in another place, has never, so far as I know, been decided in the courts of that State. In Kentucky, where the same law governs, it has been determined that a warrant once carried into survey, with the consent of the owner, cannot be re-entered and surveyed in another place. In Ohio, it has not been understood that the question has been decided.”

If this is so, the remaining question is: Was this survey of 1810, and the subsequent survey, predicated—as we assume it was—upon defunct and satisfied warrants, a survey within the meaning of the proviso of the act of 1807, and p. 437one in virtue of which, the lands included in it were withdrawn from the unappropriated residue, subject to entry in the district, and the entry and survey of the same lands in behalf of Saunders, rendered void ? This question is' so fully considered, on both principle and authority, in the.’opinion of the Supreme Court of the State of Ohio, in the present case, reported among the decisions of 1860, that we deem it unnecessary to do more than to request that reference be had to the Reports.

A principal defence relied on by the respondents was, that the act of Congress of 1807 withheld the land surveyed for Ross from location by Saunders; that his entry was void, and that the bill should be dismissed for this reason. But the Supreme Court of Ohio held that the act of 1807 was no protection to Ross’s survey, and decreed that the land should be conveyed to Saunders’s heirs; and on this part of the case p. 438an appeal was prosecuted to this court, under the twenty-fifth section of the Judiciary Act.

When a survey is void for circumstances not appearing of record on its face, and which must be proved by extrinsic evidence from different sources, then a second enterer cannot be heard to adduce such proof, because he is met by the statute, and not allowed to obtrude on the existing survey by a second location. He can obtain no interest in the land to give him a standing in court. The government can justly say to him, “You are a stranger and must stand aside; this p. 439land is withdrawn from location; you cannot be heard.” If the grantee, Ross, lost part of his land by Henderson’s grant, and his warrants were merged by this misfortune, equity required that Congress should declare his survey to be valid by a curative act. This is the principle governing the decisions in the cases of Galloway v. Finley (12 Peters, 294), and McArthur v. Dun (7 Howard, 264), where the entries, surveys, and patents had been made to dead men, and were void of course for want of a grantee; yet this court held that the act of 1807 applied, and that a second entry on the first survey was void. In the case of Stubblefield v. Boggs (2 Ohio State Reports, 216), the same doctrine is maintained.

In May, 1857, a survey was made of the tract confirmed, by directions of the Surveyor-General of California, and was approved by him. From the name of the officer this survey is called in the argument of counsel “the Hays survey. This survey was forwarded to the Commissioner of the Land Office at Washington, in order that a patent might be issued upon it. The commissioner approved of it; but the Secretary of the Interior, to whom the case was taken, disapproved it; and in September, 1858, the case was sent back to the surveyor-general for a new survey. So far as the Reporter understood a case which he did not hear, the objections to the Hays survey in the secretary’s mind was, that it ran on the east far beyond that point where the lomerias, fixed in the original grant by Governor Micheltorena, were supposed to be; this range having, on the diseno or map attached to Leidesdorff’s original petition, been indicated as p. 443being near a stream, not named, indeed, by Leidesdorff, but which was assumed by the secretary to be Alder Creek. The surveyor-general, accordingly, made and approved a new survey. From the name of the officer under whom this second survey was made it is distinguished as “ the Mandeville survey.” It was based apparently on instructions sent down from the Land Office on dissatisfaction with the former survey; these instructions saying, u that the decree of confirmation resting upon the diseno and grant must be satisfied by the survey; first, by adhering to Sutter’s line on the west, the American River on the north, and the foot-hills* near the junction on the east of a creek distinctly laid down on the diseno; that the said creek is held to be identical with Alder Creek, . .. the said hills running near the junction of said creek, and in a southeasterly direction. That these are the natural features which must control the longitudinal extension of the grant. But,” the instructions went on to say, “ as quantity was petitioned for, granted, and confirmed, the said quantity may be taken by increasing the depth of the survey, so as to comprise the eight square leagues; thereby giving the location a more compact form.” The differences of the survey and the difficulties of the case will be exhibited by reference to the map inserted in the report.

■ • Messrs. Della Torre and Wills, for the appellants: The question strictly before the court is as to the correctness of the p. 446location of the land as shown by the Hays survey; although the record also contains sufficient matter to enable the court to direct the correct manner of survey and location, if the United States succeed in showing that the Hays location is incorrect. We insist that the survey and location of the land, as shown by the Hays plat, are incorrect, and must be set aside.

When Leidesdorff applied for land, and the reports thereon had been made, Governor Micheltorena made his provisional concession of a tract “ situated on the banks of the river named the American, bounded by the land granted to the colony of Senor Sutter, and by the hills on the east.” The initial point and two lines are here fixed, and have never been disputed, to'wit: the point on the river where the Hays survey begins, the river in its extension, and the line running north and south from the initial point, which has always been treated on all sides as coterminous with the lands of Sutter’s colony. It is evident that the location cannot be extended beyond these assigned boundaries. There is also a terminus towards the east, beyond which the location cannot be extended, because the titles made by the granting power went no further. This is the line of the “ lomerias.” It would not matter even if Leidesdorff ha p. 447expressly asked for land beyond these bounds, for we are to seek not what he desired to get, but what the governor chose to give. In the documents of title which have been presented as emanating from that officer, the “ lomerias” are laid down by him as the extreme limits of the land towards the east. They are laid down in the same instruments and with the same particularity as are the American River and the lands of the colony of Sutter. We therefore contend that the concession can no more be stretche’d across the “ lomerias” than across any other of the particularized boundaries.

We shall be met with the objection that we have no right to look into this matter at all; that under the circumstances, 'e are confined to such description of the land as is given in 1 ie decree of the land commission, and that from its decree p. 448the Hays survey may be constructed. Now, it will be said, that this description is conclusive and exhaustive of the description of the land; that in its location we can only seek for such land as is therein described; and as the board excluded the “lomerias” from contemplation in describing the tract, we are, in this proceeding, estopped from any examination as to what they are or where, they are. This is a strange argument. We must presume, in the words of the judge below, when he rejected this survey, “ that neither in this case nor in any other did the board mean to confirm the claim for any other tract than that described in the grant, and delineated in the diseno.” Can we presume that the board deliberately excluded as one of the boundaries a natural landmark, called for by every one of the instruments of title produced by the claimants as issued to the original grantee ? But in setting up this argument claimants have not quoted the whole of the decree, for immediately after the part above recited the decree goes on continuously to say, “For a more particular description, reference to be had to the original grant, and to the petition and map contained in the espediente.” This must be conclusive. Is not this latter quotation as much a part of the decree as the former ? Has not the reference to the description in the grant and espediente, &c., the same effect as if the words had been set out in the decree ? And are we now, when in search of the “ more particular description,” to be estopped from reading the documents to which the commission has referred us ? This would suit the claimants, because by disregarding the “ lomerias,” as un-named by the decree, they might stretch their claim beyond the limit assigned by the grant. But the reference to the grant makes the decree, in law, precisely the same as if the boundary “ lomerias” was fully and particularly, and in words, inserted therein, for “ verba illata inesse videntur.” In truth, the board intended in this case, as in all others, to give a general description of the land, leaving it for after-proceedings by the surveyors or other proper authority to compar and assimilate the land as it exists in nature with its description m the title-papers.

the act of 1860, and the Land Commission under the act of 1851. There is no telling to what extent this mode of construction might be carried. It is equal to the power of making a new decree, and of reversing the judgment of a court, the meaning of which it pretends only to construe. It is said that the form of the tract produced by the lines of the decree show that the board, by the term “ easterly,” applied to the general course of the southern boundary, evidently intended that line should run more nearly east than it does in the Hays survey, and that the board must have supposed that the general course of the river was east, and that in order to carry out the meaning of the board we must change the course of the other lines on the east and west, in order to conform with the supposed intention of the board respecting the southern boundary. The assumption that the board did not understand the course of the river, is without foundation, and is contradicted by the terms of the decree itself. The peculiar manner in which the southern boundary lines are constructed, show that the board perfectly well understood that the course of the river was circuitous and irregular, and that its general course was not east. After first directing the starting-point to be the oak tree, and the first line to run from thence “ south” two leagues, it says, “ thence ‘ easterly,’ by lines parallel with the general direction of the said American River, and at the distance, as near as may be, of two leagues therefrom.” The course provided by this language is the course of the river by its bends and turns, and so the line is to be divided in parts to accommodate itself to these bends and turns, otherwise the board, if it had supposed the course of the river to be east or near east, would have said, thence “ easterly in a line,” instead of easterly in lines.” The term “ easterly” is only necessary to indicate the way to turn when at the end of the first line, whether toward the west or toward the east. We understand the word easterly in its usual acceptation to mean to the east generally, in contradistinction to west, north, or s°uth, and is correctly applied to any general direction to the east, as opposed to the west, which would not be better p. 452indicated by using the terms northerly or southerly. In this decree the term easterly has qualifying words attached to it, showing that it meant the direction of the American River from the oak tree.

The original papers give the locality, the form, and the dimensions of the tract granted. It is situated on the sont ern bank of the American River; it is four leagues in lengt by two leagues in width; it embraces eight square leagues, p. 453and it is bounded by the land of Sutter on the west. From the data thus furnished, the boundaries, which are not designated, can be readily ascertained and declared. As a question was made -before the board upon the location of some of the boundaries, and testimony was taken as to the line of the land of Sutter, and the position of the range of hills on the east, the case was a proper one for the board to fix with precision and declare the boundaries in its decree. As the appeal from the decree rendered was withdrawn by the United States, it is unnecessary to consider the character of the testimony produced or the weight to which it was entitled. The board acted upon it in connection with the title-papers, and in its decree, entered in April, 1857, declared the boundaries of the tr’act, running the same, except on the side of the river, by courses and distances.

In May following, a survey of the tract confirmed, was made under the directions of the Surveyor-General of California, and was approved and transmitted by him to the Commissioner of the General Land Office, at Washington, for examination and approval preliminary to the issue of a patent. In May, 1858, the commissioner appears to have approved the survey, and to have made preparations to carry the same into a patent, but was overruled by the Secretary of the Interior, who, in September following, disapproved of the survey, and sent the case back to the surveyor-general. At the subsequent December Term of this court, the decision of the case of the United States v. Charles Fossat (21 Howard, 445), was made, which was supposed by the District Court of California to recognize a jurisdiction in that court to supervise all surveys of confirmed claims under Mexican grants. Acting upon this view of the decision, the District Court, in November, 1859, ordered the new survey which had been made by the surveyor-general to be returned into court, and gave leave to the claimants to file exceptions to it. The new survey was accordingly returned, and exceptions to it were filed by the claimants and purchasers under them ; and proceedings upon the exceptions 'vere pending on the passage of the act of June 14th, I860. p. 454Whatever question might be raised as to the jurisdiction of the District Court to supervise the survey previous to that act, there can be none since its passage. That act applies not merely to surveys subsequently made, but also to such surveys as had been previously made and approved by the surveyor-general, and returned into the District Court upon objections to their correctness. Under the act, a monition was issued, and on its return counsel appeared on behalf of the United States, and for the claimants, and for the Natoma Water Company, a purchaser under the claimants. No other party appeared, and the court ordered “ the default of all parties not appearing” to be entered. The United States subsequently filed their exceptions. All parties agreed in averring a want of conformity in the survey with the description of the land contained in the decree of final confirmation.

The District Court set the survey aside, and ordered a new one. Subsequently, upon a rehearing, it approved and confirmed the survey originally made. From its decree in this respect the United States appealed, and on the argument of the appeal took positions in support of the second survey, which are directly the reverse of the objections urged in their name in the court below. To the apparent inconsistency in their action in this respect the attention of counsel was called, and the explanation given was that objections in the District Court, though put forward in the name of the United States, were in fact urged on behalf of settlers claiming that part of the tract covered by the survey, was public land open to settlement. It is unnecessary to express any opinion upon the sufficiency of this explanation, or whether the United States are bound by objections on the record, which are advanced in their name, when presented for the protection of parties claiming interests under them by preemption, settlement, or other right or title. We refer to the matter, not because our judgment will be in any respect affected by it, but to indicate that it would be the better practice for the district attorney, when appearing for third parties in the name of the United States, to state the fact, p. 455and give the names of the real contestants in the exceptions filed.

The answer to all efforts of this kind is, that the decree is p. 456a finality, not only on the question of title, but as to the. boundaries which it specifies. If erroneous in either particular, the remedy was by appeal; but the appeal having been withdrawn by the government, the question of its correctness is forever closed.

In the present cases the plaintiff applied, in the latter part of August, 1856, to the agent in Baltimore, for an indorsement on the policy of the coffee in question, laden or to be laden on board a vessel called the “ Mary W.,” from Rio de Janeiro to New Orleans, which application was communicated to the company, in order that they might fix the premium. The company at first declined to acknowledge the vessel as coming within the description of a “ good” vessel, on account of her alleged inferior character; but the plaintiff, insisting on her seaworthiness and his right to insure within the terms of the policy, the company replied to ms application: “We shall charge the same rate as the Sun does, viz., 10 per cent., subject to average, or 2| per cent, free of average.” This the plaintiff refused to pay. The p. 459company thereupon claimed to be released from the risk. The plaintiff asserted that there was still a subsisting contract.

But another question here arose; the question, to wit, by what standard was this fact, whether the vessel did or did not rate below A 2, to be fixed? Was it by that of Rio, whence she sailed ? Or by that of Baltimore, where the application for insurance was made ? Or by that of New York, where the policy was issued ? Or by the register of the company which made the insurance ?—with a conclusion that if that were silent, the vessel was not A 2 within the meaning of the contract at all. It was proved that the standard of rating was different at Rio and Baltimore from what it was at New York, being higher in the last-named city than it is in either of the former ones; so much so, indeed, that a vessel might be rated A 2, at Rio and Baltimore, which would fall below that-rate at New York. It was also proved that each of the marine companies of New York keeps constantly in its employment a salaried officer, whose business it is to examine and rate vessels, and that the rates of the vessels thus examined by him are reported to the company, and p. 461entered upon a book kept for that purpose. Mr. Swan, of the house of Grinnell, Minturn & Co., large shipping merchants of New York, testified that “the business of rating is a special one; that the companies all have inspectors to ascertain the rating of vessels, and that when a policy speaks of the rate of vessels, it is the rate of the company, and refers to that standard.” There was other testimony to the same effect. Testimony was given also, however, showing that this rating differs materially on the registers of different companies, and that we have not yet established in this country any institution similar to that of the British Lloyds; though there is one in New York calling itself the American Lloyds, and now attempting to establish for itself here the same position as the one in England, which has its inspectors in all ports of the United Kingdom, whose reports are forwarded to a board in London, which fixes the rate of all vessels which are known to it, and whose owners are willing to have them examined. In feet, with regard to this particular vessel, it appeared that in 1849, she had three different ratings out of five which it was proved had been made of her; that she left New York in the year last mentioned for California, and has never been in the port of that Atlantic metropolis since; that 1849 was the last year in which she was rated on the books of the “ Sun Mutual” at all; while the “ Orient Mutual” had not been established until 1854, and of course had her not upon any register of theirs ; and shown finally that a rating seven years old is regarded by all insurers as no rating at all.*

1. An open or running policy is issued when the shipments to be protected thereby, the time of making them, the vessel or vessels to carry them, the ports of destination, and the value or amount of the cargo, and other circumstances material to the risks to be borne by the underwriter, have no present existence, or are unknown to either of the parties. The contract is necessarily incomplete, though binding upon the underwriter, to the extent of the agreement. It contemplates that if the assured shall desire to avail himself of his right to be protected under it, he shall, when the risks to be insured are known to him, or within a reasonable time thereafter, make a declaration, return, or report of them to the underwriter, with all essential particulars, in order that the premium to be charged may be estimated by the insurer; and, if agreed to, may be entered with the particulars upon the policy, which is “open” to p. 464receive them.* The indorsements on these very policies furnish examples by way of illustration. The indorsements specify the successive cargoes insured, the different vessels by which each was to be carried, the port of departure, the several ports of destination, the value of each different shipment, and the rate of premium charged by the insurer, and agreed to by the assured, on ea,ch risk.

2. The proofs admit of no dispute as to the “ rating” of the policy, referring to the (t rating” on the books of the company issuing the policy. The loosest interpretation of this word in the policy, under the evidence, cannot carry it beyond a reference to a “ rating” upon the books of the marine p. 467insurance companies in the city of New York. There is no evidence that, in 1856, the vessel in question was not a vessel “ rating lower than A 2” on the books of the Sun Mutual Insurance Company, the defendant below. Nor evidence that, in 1856, she was not one “ rating lower than A 2” on the books of the marine insurance companies in the city of New York, or of any of them. There is evidence, that in that year, she was a vessel “rating lower than A 2” on the books of the defendant below, and of the other marine insurance companies of the city of New York; for, it is manifest that any evidence to the effect that she had, in 1856, come to be disrated, or fallen below any insurable rate, is emphatic evidence that she was a vessel “ rating lower than A 2” on such books.

Much weight is attached in the argument in this connection, to the phrase “ such clauses to apply as the company may insert, as the risks are successively reported.” It is not necessary to determine here what is the character of the clauses referred to, or what effect that phrase might have under certain circumstances. A war, a blockade, or some other change of affairs occurring after the policy was signed, might justify the company in inserting some clause for its protection, but we do not think it can be so construed as to authorize a clause changing the rate of premium in a ease p. 470where it is fixed by the other terms of the contract. No such clause was added, or proposed to be added to the policy by the company, and it is useless to speculate on what might or might not have been successfully claimed, in a case where no claim was made.

When w’e have satisfied ourselves that the policy is susceptible of a reasonable construction on its face, without the necessity of resorting to extrinsic aid, we have at the same time established that usage or custom cannot be resorted to for that purpose. In speaking of usages of trade, Greenleaf says :* “ Their true office is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature of their contracts, arising not from express stipulation, but from mere implications and presumptions, and acts of doubtful and equivocal character, and to fix and explain the meaning of words and expressions of doubtful and various senses. Again, he saysfy “But though usage may be admissible to explain what is doubtful, it is not admissible to contradict what is plain.” In the case of the Schooner Reeside^ Mr. Justice Story, after using language strongly condemning the tendency to introduce and, rely on usages in courts ofjustice, and defining their true office in the language just cited from Greenleaf, proceeds to say: “ But I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and,® fortiori, not in order to contradict them. An express contract of the parties is always admissible to supersede, or vary, or control a usage or custom; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or contradicted bj a usage or custom, for that would not only be to admit paro evidence to control, vary, or contradict written contracts, p. 471but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the’ most formal and deliberate written declarations of the parties.” These views, in ■addition to the high source whence they came, commend themselves to our judgment by their intrinsic soundness. “Not only is a custom inadmissible which the parties have expressly excluded, but it is equally so if the parties have excluded it by necessary implication. For a custom can no more be set up against the clear intention of the parties, than against their express agreement, and no usage can be incorporated into a contract which is inconsistent with the terms of the contract.”* '

upon this question the defendants below, in some five or six forms, prayed that the jury be instructed that it must be determined by the rating of the vessel on the books of the defendants, and other insurance companies in New York. The court refused the prayers, but told the jury, that “if p. 472they should find that the rating of vessels on the registers of the companies in New York was always from personal examination by inspectors of the different companies, and should further find that by the long absence of the said vessel from New York, she had, in the understanding and usage of underwriters in New York no fixed rating on the registers of any of the insurance companies in that city in 1856,’’ (the date of the contract), “but would have been rated there not lower than A 2, owing to her thorough repair, had she been there for examination, then the plaintiff is entitled to recover, although the jury may find that the said vessel was rated in 1848 and 1849 on the books of defendant, below A 2; and that it was the general usage and understanding of underwriters and commercial men in New York, that the words in their policies, ‘ not rating below A 2,’ refer to the rate of vessels on the register of the company making the insurance.”

There is nothing in the language of the policy itself to indicate the source to which we are to look for the determination of the rating of the vessel. The reasonable inference would seem to be, that, like any other question of value, or quantity, or quality, left open in a written contract, it should be decided by a reference to all the sources of information which enable the jury to fix the rate correctly. What is meant by the rating of vessels in insurance policies? It means the determination of their relative state or condition in regard to their insurable qualities. It is a matter which has Excited much interest in the commercial world, although we are not aware that it has been often before the courts. In Great Britain there was established, in the year 1834, a department at the British Lloyds devoted to this very business. They p. 473have their inspectors in all the ports of the three kingdoms, whose reports are forwarded to a board at London, and this board fixes the rate of all vessels which are known to it, and whose owners are willing to have them examined. The register thus kept, is the one used and referred to in all contracts of insurance in that country. They, however, have a mode of rating entirely different from any adopted here.* The testimony in this case shows that there is in New York an institution calling itself the American Lloyds, which is now attempting to establish the same position as the one referred to’ in England. But the proof is, that its rating is not generally adopted as yet, either by insurers or insured; and that each company in New York which does any considerable amount of business, has its own inspectors and its own register for rating vessels. The evidence shows that this rating differs very materially on the registers of the different companies. None of these registers have, or can have, any right to determine conclusively the rate of a vessel, when that question comes to be determined in a court of justice. It would seem that in a question of this kind, left open by one of these insurance companies, and the party whom it has professed to insure, equity would require the flatter to be determined, if by the register of any company, by some other than that of the party interested. These registers are the private books of the companies. They are not for public use, and can only be seen by the courtesy of the companies’ officers. Under these circumstances the justice of the principle which would refer the rating of the vessel exclusively to this register of a party to the suit, when no such provision is inserted in the policy, is not perceived. If they make their contracts, intending to assert such a claim, fair dealing requires that they insert it in their policy.

But testimony was introduced tending to show that, by the usage of underwriters and merchants in New York, the rating referred to was the rating on the register of the company which made the policy, and the court instructed the p. 474jury to disregard this usage if they should find that there was no rating of this vessel on the books of one of the defendants, and none since 1849 on the books of the other company.

It is not, however, necessary to go any further in this case than to decide, as we do, that such usage, if it were admissible at all, could only apply to the case of a vessel 'which p. 475had an actual rating on the books of the company so recent as to be recognized by insurers as a valid rating. And that as the Mary W. had no such rating on the books of the defendants, the usage cannot apply to these contracts. Such was evidently the view of the court below, in which we think it was correct. • But the court was asked by the defendants below to instruct the jury, that in determining the rate of the Mary W., they must confine themselves to the registers of the defendant and the other insurance companies of New York.

The vessel had no rating on the books of any insurance company in New York, later than 1849, which was more than seven years before the risk was claimed to attach in these cases. It was, as we have already said, fully proved that such a rating was wholly disregarded by all insurance companies, as being of no value. The effect of the instruction would have been, to confine the jury to testimony which would give them no light on the subject they were directed to consider; indeed, to that which could not be called evidence at all. And the argument that plaintiff could not be supposed to have contracted with reference to any such rule as this, is quite as forcible as it is in regard to the claim to confine the evidence to defendants’ own books. In this instance, there is no claim that the rule is supported by any usage. These registers differ among themselves, and those offered in evidence show that at the time the Mary W. left the Atlantic coast for California, in 1849, she had as many as three different ratings on the books of the five companies whose registers were offered in evidence. Which of these should prevail, even if they were recent enough to be admissible ? Shall the jury be excluded from all other evidence to explain these differences, or to show the relative value or reliability of these different estimates ? Can any sound reason be given for such exclusion ? It is supposed that the few companies which may happen to have a vessel on their register have exhausted the means of information as to her character, and that no one else can throw any light on it? So far from restricting the jury in this manner, it seems to p. 476us that as the true object of inquiry is to fix the insurable character or status of the vessel, they should be at liberty to hear any testimony which would tend to show her capacity for resisting the perils insured against. It is therefore our opinion, that when the court instructed the jury to base their verdict on the fact to be ascertained by them, whether the Mary W. would or would not have rated below A 2 in New York, had she been there for examination, the rule was stated quite as favorably to plaintiffs in error as sound principle will justify.

The policy in this case underwent a very full examination p. 477when it was formerly before the court. * The evidence in that case showed, and the argument of the counsel proceeded upon the assumption, that the vessel rated in New York, the place of the contract, below A 2; and, inasmuch as the policy provided, in case of that rating, for an additional premium, the principal question was, whether or not the company had a right to fix the additional premium, or, in case of dissent by the insured, it was a question to be determined by the court and jury. This court held, upon a true construction of the policy, that the right belonged to the company. The judgment of the court below was reversed, and the cause remanded for a new trial. On this second trial, which is now before us for review, the plaintiff placed his right to recover upon the ground that, at the time the Mary W. was reported to, the company for indorsement on the policy, she, in point of fact, rated A 2, and hence came within the description of vessels in the policy that were to be insured for the premium paid when it w'as issued, "which was 1| per cent. This ground was denied by the company, and, in addition, they also maintained that even if, as claimed, the vessel rated A 2 at the time of the report for indorsement, they had a right to add to the premium of the one and one-half per cent.; and inasmuch as the plaintiff had refused to pay this additional sum, no insurance of the coffee was effected. This latter position of the company assumed that, upon the true construction of this running policy, no binding contract of insurance existed in respect to a’vessel reported for indorsement, whether she rated A 2 or not, until ’ the company had fixed the rate of premium, and the insured had assented to it; and further, that whether the vessel rated A 2 or above that rate, they had a right to demand an additional premium to that mentioned in the policy.

In order to understand the force and effect of this clause, it will be useful to refer, for a moment, to the usage of the company in taking these risks on their running policies, as proved in this case. The premiums specified in’the body of the policies are regarded as nominal, or rather as average premiums, and the true premiums to be charged are fixed p. 479by increasing or reducing the average premiums when the risk is reported. This usage explains what is meant by the clause, “ The premiums on risks to be fixed at the time of the indorsement,”—for, by recurring to the terms of the policy, it will be seen they provide for the case wffien an addition to the premium may be made, namely, when the vessel rates below A 2; and also, when the reduction is to be made, namely, in case the vessel rates A 2, or above, and the shipment of the coffee is to an Atlantic port, the reduction then is to be | per cent. This usage has been carried out, practically, during the running of this policy. The following vessels are indorsed on it“ August 13, 1855, Bark Maine Law, from Rio de Janeiro to New Orleans, $15,750 at 1J per cent.; Brig Windward, from same place to Baltimore, $4750 at 1| per cent. Nov. 20, Brig T. Walters, from same place to Philadelphia, $2375 at per cent.” This usage and the practice under it, furnishes a full explanation of the clause in question, and reconciles it with the previous parts of the policy, which were supposed to be in contradiction to it. It is true, the premiums are to be fixed, at the time the risks are reported, but they are to be fixed in accordance with the stipulations in the policy, which, as we have seen, have specially provided for them. The company can make no additions to the premium except the vessel rates below A 2. If at or above this rate they are bound to deduct the | per cent., when the risks are reported, if shipment be to an Atlantic port.

We lay out of view all questions, so fully discussed on the p. 480argument, whether or not the rating of vessels referred to in the policy, related to the rating in the books of the company, or, if not, to the books of other companies in the city of New York; and whether resort'must be had exclusively to these books for the purpose of ascertaining the rating of the vessels; for it appears from the evidence, and is not to be denied, that neither the books of the Orient, or of the Sun company, nor of any other of the insurance companies in the city, contained in contemplation of law a rating of the Mary W., at the time she was reported to the two companies, that could be of any controlling weight on the question. She was not rated in the books of the Orient at all, and had not been in those of the Sun for some seven years; and the same is true in respect to the other companies. There is not evidence in the case, therefore, to raise the questions as to the effect to be given to the rating of a vessel in the books of the company at the time of the insurance; and hence, it would be premature to express any opinion upon them, or upon the effect to be given to the like evidence in respect to the books of other companies at the place of the contract. These are important and interesting questions, and may well deserve the deliberate and careful consideration of the court when properly presented for decision.

Then, as to the charge of the court. It is certainly very comprehensive and involvedj and must have been difficult or a jury to understand; but we will endeavor to state the substance of it, which is this: that if the jury should be of option from the evidence, that the Mary W. at the time she e Jo was seaworthy and in good condition, and after her repairs was specially fit for the transportation of coffee, and v °l. i. gl p. 482rated there A 2 ; and shall further find, that by the long absence of said vessel from the city of New York, there was no fixed rating on the registers of any of the insurance companies in that city in 1856; but that she would have been rated there not lower than A 2, owing to her thorough repairs, had she been there at the time, then the plaintiff was entitled to recover, notwithstanding she rated in the city of New York in 1848-9 on the books of defendants below A 2; and notwithstanding it was the usage and understanding of underwriters and commercial men in that city, that the phrase “ not below A 2,” referred to the rate of vessels on the books of the company making the insurance.