Ins. Co. v. Ritchie, 72 U.S. (5 Wall.) 541

Insurance Company v. Ritchie.

The jurisdiction of the Circuit Courts in original suits between citizens of the same State, in internal revenue cases, conferred or made clear by the act of June 30, 1864, “to provide internal revenue,” &c. (13 Stat at Large, 241), was taken away by the act of July 13th, 1866, “ to reduce internal taxation, and to amend an act to provide internal reve nue,” &c. (14 Id. 172). And suits originally brought in the Circuit Courts, and pending at the passage of this act, fell.

This was an appeal from a judgment of the Circuit Court for Massachusetts, dismissing a bill in equity, filed by the Merchants’ Insurance Company, a corporation created by the laws of Massachusetts, and having its place of business in the city of Boston in that State, against James Ritchie, and E. L Pierce, the assessor and collector of internal revenue for the third collection district of that same commonwealth, and both citizens of it, praying that they might be enjoined from the distraint and sale of the complainant’s property for non-payment of a certain tax. The defendants demurred, for the reason that the bill disclosed no ground for equitable relief. The demurrer was sustained, and the bill dismissed.

Coming here, the case was elaborately argued by Mr. Stanbery, A. Gr., and Mr. Ashton, Assistant A. Gr.,for the assessor and collector, and by Messrs. S. Bartlett and F. W. Palfrey (by brief) for the Insurance Company; the argument turning chiefly on the matter of public policy on the one hand, in allowing officers of the government to be embarrassed in the prompt collection of its revenues by the strong and summary process o injunction; and on the other hand, on the matter of private rights of the citizen in precluding him from adequate remedy against clearly illegal proceedings of government agents in t e assessment and collection of these revenues.

ut a preliminary question, the question namely, whether e suit as. an internal revenue case could, under the statutes 0 t e United States as now existing, be maintained at all, . t e parties all being citizens of the same State,—cut off decision on these points, and renders a report of the principal

argument irrelative.

The CHIEF JUSTICE delivered the opinion of the court We meet upon the threshold of this cause a question of jurisdiction.

The record discloses a suit in equity by the Merchants’ Insurance Company, a corporation under the laws of Massachusetts, having its place of business in the city of Boston, against James Ritchie and E. L. Pierce, assessor and collector of internal revenue in the third collection district of that commonwealth. The corporation constructively,* and Ritchie and Pierce actually, are citizens of Massachusetts. And the question is, Whether this suit, as a revenue case, can be maintained by a citizen of Massachusetts against citizens of the same State ?

The Judiciary Act of 1789 limited the jurisdiction of National courts, so far as determined by citizenship, to “ suits between a citizen of the State in which the suit is brought and a citizen of another State.” And, except in relation to revenue cases, this limitation has remained unchanged.

In 1833 an attempted nullification of the laws for the collection of duties on imports led to the enactment of a law, one of the provisions of which conferred on the Circuit Courts jurisdiction of “ all cases in law or equity arising under the revenue laws of the United States for which other provisions had not been already made.”f

Until the passage of this act no original action by a citizen of any State against a citizen of the same State could be maintained in a National court, at law, or in equity, for injuries arising from the illegal exaction of duties by collectors of revenue. Redress of such injuries could be obtained only in the State courts, and the revisory jurisdiction of this court could be invoked only under the twenty-fifth section of the Judiciary Act.

The act of 1833 made the right of action to depend not altogether, as previously, upon the character of the parties

* Louisville Bailroad Company v. Letson, 2 Howard, 554; Marshall v Baltimore & Ohio Bailroad Co., 16 Id. 314.

Dec. 1866.] Insurance Company v. Ritchie. 548

as citizens or aliens, but also on the nature of the controversy, without regard to citizenship or alienage. Under that act citizens of the same State might sue each other for causes arising under the revenue laws. A citizen injured by the proceedings of a collector might have an action against him for the injury, though a citizen of the same State with himself.

And the third section of the same act gave the right to collectors or others who might be sued in any State court, on account of any act done under the revenue laws, to remove the action by a proper proceeding into a National court.

The right to remove causes from State into National courts had been long before given by the Judiciary Act, but it was limited to certain classes of cases, which did not include those arising under the laws for the collection of duties.

After the act of 1833 many suits, brought in the State courts against collectors, were removed into the Circuit Courts. The cases of Elliott v. Swartwout* and Eend v. Hoyt .ft were of this description. They were suits originally instituted in the Superior Court of New York, but removed to the Circuit Court of the United States for the Southern District, to recover from collectors of the port of New York uties alleged to have been illegally exacted.

nder that act suits in equity in proper cases, as well as actions at law, might have been maintained against collecors of customs by citizens of the same State; and upon the enactment, under the exigencies created by civil war, of the existing internal revenue laws, it became a question whether e general provisions of that act, giving jurisdiction of cases n er the revenue laws, extended to cases under the new

enactments.

q1168^011 was resolved by the internal revenue act of

> in the fiftieth section of which it was provided that the i ~ ^ie aC^ should extend to all cases arisg un er the laws for the collection of internal duties. |

544 Insurance Company v. Ritchie. [Sup. Ct.

It was while this section of the act of 1864 was in force that the suit in the present record was brought. Had it been suffered to remain in force the question of jurisdiction now under consideration could not have arisen.

But it was repealed by the act of 1866,* without any saving of such causes as that before us. And not only was there no such saving, but it was expressly provided that “ the act of 1883 shall not be so construed as to apply to cases” arising under the act of 1864, or any amendatory acts, “nor to any case in which the validity or interpretation of such act or acts shall be in issue.”

The case before us is a case under the act of 1864. It is a case of which, because of the fact that the appellants and appellees are citizens of the same State, we have no jurisdiction except under the act of 1833. And the act of 1866 declares that the act of 1833 shall not be construed so as to apply to such a case.

This is equivalent to a repeal of an act giving jurisdiction of a pending suit. It is an express prohibition of the exercise of the jurisdiction conferred by the act of 1833 in cases arising under the internal revenue laws.

It is clear, that when the jurisdiction of a cause depends upon a statute the repeal of the statute takes away the jurisdiction, f And it is equally clear, that where a jurisdiction, conferred by statute, is prohibited by a subsequent statute, the prohibition is, so far, a repeal of the statute conferring the jurisdiction.

It is quite possible that this effect of the act of 1866 was not contemplated by Congress. The jurisdiction given by the act of 1833 in cases arising under the customs revenue laws is not taken away or affected by it. In these cases suits may still be maintained against collectors by citizens of the same State. It is certainly difficult to perceive a reason or discrimination between such suits and suits under the inter

* 14 Stat, at Large, 172. goff f Rex v. Justices of London, 3 Burrow, 1456; Norris v. Crocker, »rd, 429.

nal revenue laws; but when terms are unambiguous we may not speculate on probabilities of intention.

The rules of interpretation settled and established in the construction of statutes deny to us jurisdiction of the controversy in the record, because it is a suit between citizens of the same State, and the jurisdiction of such suits in internal revenue cases, conferred by the acts of 1833 and 1864, is taken away by the act of 1866.

The appeal in this cause must therefore be

Dismissed for want of jurisdiction.

The Bird of Paradise.

1. Ship-owners, as a general rule, have a lien upon the cargo for the freight, and consequently may retain the goods after the arrival of the ship at the port of destination until the payment is made. Presumption is in favor of the lien, but it may bo modified or displaced either by direct words or by stipulations incompatible with the existence of such a right.

2. Insolvency of the shipper occurring while the goods are in transit, or before they are delivered, will not absolve the carrier from an agreement to take an acceptance on time, instead of cash, for the freight, nor authorize him, when he had made such an agreement, to retain the goods until the freight is paid. On the other hand, as a bill of exchange or promissory note given for a precedent debt does not extinguish the debt, unless such was the agreement of the parties, a bill or note falling due efore the unloading of the cargo, and protested and unpaid, is no discharge of the lien; and the ship-owner, in such a case, may stand upon it as fully as if the acceptance had never been given.

ence, where, in the case of a vessel chartered from Liverpool to San rancisco, freight was to “be paid in Liverpool on unloading and right elivery of the cargo,” at a rate fixed by the parties, “such freight to be paid, say one-fourth in cash and one-fourth by charterer’s acceptance, at six months from the final sailing of the vessel, and the remain-er y like bill at three months from date of delivery, at charterer's office in verpool, of the certificate of the right delvvery of the cargo agreeably to bill cf ading, or in cash, under discount at five per cent., at freighter’s i Th6 ShiP an^ her freight are bound to this venture”—Held,

at t e ‘ charterer’s acceptance at six months from the final sailing of e vessel having been dishonored and he become bankrupt, it was no V0L* V. 35

payment of the one-fourth agreed to be so paid for, and that the lien for that fourth was not displaced.

ii. That as to “ the remainder,” which was to be by like bill, at three months

from date of delivery, at charterer's office in Liverpool, of the right delivery of the cargo agreeably to bill of lading—the lien had been displaced, notwithstanding that the charterer had become bankrupt before the vessel arrived at San Francisco.

Appeal from the Circuit Court for the Northern District of California, decreeing against a lien set up by ship-owners for freight, on libel filed against a cargo. The case was thus:

On the 16th March, 1863, Eccles, of Liverpool, chartered at that place from Taylor & Co., owners of the ship Bird of Paradise, that vessel, to carry a cargo of coal, of which Eccles was the owner, to San Francisco, California, at a rate agreed on per ton.

“ The freight to be paid in Liverpool, on unloading and right delivery of the cargo, one-fourth in cash, one-fourth by the acceptance of Eccles, the charterer, at six months from the final sailing of the vessel, and the remainder by like bill, at three months from delivery, at charterer’s office in Liverpool, of certificate of right delivery of cargo agreeably to bills of lading, or in cash, less five per cent., at freighter’s option. The vessel to be addressed to the freighter’s agent abroad. £500 to be advanced in cash at the port of discharge on account of the freight. The ship and her freight are bound to this venture. The penalty for non-performance of this agreement is to be the chartered freight in pounds sterling.”

The master signed, and the freighter, Eccles, accepted, a bill of lading, in the usual form, for the cargo deliverable “ to order or assigns, he or they paying freight at the rate of------ , as per charter-party.”

The vessel sailed from Liverpool April 16, 1863, and arrived at San Francisco on the 26th December, 1863, a voy age of eight months and ten days.

The amount due for unpaid freight, regarding the first or dishonored acceptance as a nullity, was thus $7050.

The captain refused to deliver the cargo to the agents of Eccles, but kept control of it himself.

These agents accordingly filed their libel in the District Court for the Northern District of California against the cargo, to recover possession of it; the delivery being resisted under a claim of lien for freight.

That court considered that the claim was unfounded, and decreed accordingly, and the decree being affirmed by the Circuit Court, the correctness of such a view was now the question here on appeal.

I. This is an unconscionable action. The court will make all reasonable presumptions against the libellants. Eccles chartered the vessel to carry a cargo of coal from Liverpool to San Francisco, a voyage of more than eight

months. The vessel performed the voyage in safety, at the

expense of the owners, and then finding the charterer bankrupt, refused to deliver the cargo to his agents, unless the

reight was paid. The agents refused to pay the freight, and they brought this extraordinary action. Having had t e use of the entire ship, without expense, for more than

nine months, this bankrupt charterer demands the cargo ree of freight, on the sole ground that he had given a written promise to pay the freight, which he neither had perormed, nor, being as he was, a bankrupt, ever would or could perform.

will transfer to him the possession. Freight is a most just demand.*

Charter-parties are to be liberally construed-!

II. The whole sum due—the entire balance of $7050—should have been paid before a delivery. The freight is a lien upon the cargo by the maritime law, and all presumptions are in favor of the lien. The ship is bound to the merchandise and the merchandise to the ship. This lien is not created by the act of the parties, but by the general maritime law, and is founded in public policy and the interest of commerce. The Kimball^ in this court, is full to this effect. It gives to the owner and the shipper a responsible indorser and a responsible defendant in every port of the sea. And this rule—an elementary and cardinal one—is to prevail, unless the parties have intentionally excluded it—a thing to be inferred from plain language alone. Nothing can be inferred from silence. The burden is on the shipper to prove an absolute waiver of the lien. He has given no such evidence here.

Now, in this case, the freighter having failed having become wholly bankrupt—there was no obligation to deliver, unless the whole amount due—we mean both that sum due on the protested draft, and that balance due after the £500 cash were paid at San Francisco—were paid in cas There is in every contract for a payment by acceptances, when made in a case like this, a condition—not the ess fundamental because but implied—that the acceptor sha be solvent. This condition the law adds to the contract.

1. By the terms of the agreement, the giving an acceptance was “non-performance” if it were not paid, it r before the end of the voyage, and not being paid at ma u rity, Eccles failed to perform his part of the contract. or^ over his bankruptcy demonstrated that he never cou pe form it. a^e

you pay as agreed in the charter-party. If you do noti pay’ it will not be delivered. We shall not deliver on dishonored acceptances—they are not payment.”

3. So, finally, by the now prevailing rules of commercial law, the rule at this day being, that a mere note or draft does not amount to a payment of a debt.* Certainly, in cases of sales of goods conditionally, as for cash or indorsed paper, and the cash not paid or the notes not given and the property delivered—the delivery is conditional, if the intent of either party that it should be so can be at all inferred from their acts and the circumstances of the case.f

In a case very similar to this in New York, Comstock, J., said:

“The analogies to be derived from the law of stoppage in transitu are perhaps not perfect, but they are sufficiently near to furnish a rule for the present case. When goods are sold to be paid for in the notes of the buyer, and he becomes insolvent before the delivery is complete, the seller may arrest the delivery and rescind the sale. There is nowhere in the terms of the contract any such condition. The law implies it, because the assumed ability of the buyer to pay for the goods was the inducement to the sale.”

But in this case we have the very terms of the contract. The charterer had failed to perform the charter-party on his part by not having paid his acceptance for the one-fourth. There was thus “ non-performance” of the agreement; and, by the terms of the contract, “ the penalty for non-performance of this agreement is to be the chartered freight in pounds sterling.” That is to say, in cash on delivery.

here were also in this case circumstances which aid in t e construction of the contract. This, it must be remem-

ere, was the longest voyage known to commerce, ending many thousands of miles from the parties; no security ex-opt the cargo; the cargo homogeneous, of great value and

Argument against the lien.

charter-party; the making the acceptances fall due before the end of the voyage, so that, if not paid, the charterer would violate the charter-party and the master be entitled to enforce his lien for the whole freight by the bill of lading, and the improbability that any ship-owner would despatch his ship on such a voyage with no possible security for any freight: all these coincide with those provisions of the coir tract which provide for the usual lien.

III. But if this were not true as to the whole amount—conceding that as to the second instalment the language of the charter-party (“ the remainder by like bill at three months from delivery, at charterer’s office in Liverpool, of certificate of right delivery”) may place, as to that balance, the risk of solvency on the ship-owners—yet certainly as to the quarter for which the draft was given and not paid, the case is different. There has assuredly been no payment of that fourth; while payment of it was a condition precedent to delivery. In any view, by the terms of the contract, as well as by the now prevailing rule of commercial law, the giving of a worthless draft was no payment.

I. The provisions of the charter-party are inconsistent with any lien upon the cargo for the freight.

The freight was to be paid, at Liverpool, the port of loading, not at San Francisco, the port of discharge. A payment to the master at San Francisco, therefore, would not protect the party making such payment. The freight was to be paid not concurrently with the delivery of the caigo, but partly in advance and partly three months after such delivery: “ One-fourth in cash and one-fourth by charterer s acceptance at six months from the final sailing of the vessel. These payments were to be made in advance of any freig it being earned, in consideration therefore not of having cai ried, but simply of agreeing to carry and of taking the caigo on board. “ The remainder, by like bill, at three mont is from date of delivery, at charterer’s office in Liverpool, o t e certificate of the right delivery of the cargo.” This por ion

Argument against the lien.

was, therefore, payable also in Liverpool, and not payable there till a certificate should be produced at the charterer’s office in Liverpool, that the cargo had been duly delivered in San Francisco, and then payable by bill at three months, or in cash, at charterer’s option.

It is impossible to sustain a lien as for freight, under a special contract of this character, without disregarding the whole current of authority.*

The lien exists only where the master has a right to demand the freight on unlading the cargo, or where the freight is payable so soon after the cargo is discharged as to imply a right in the master to detain for that short period; as in the case of The Kimball, in this court, relied on by opposite counsel, where the freight was payable, “ one-half in five, and one-half in ten days after discharge” of the cargo. There a distinction was drawn between a discharge of the cargo and the delivery of it, the period allowed being held “ only a reasonable one for examining the condition of the cargo.”

In the case at bar, however, the credit given was so long, and the provisions of the charter-party in reference to place of payment so inconsistent with any lien, as to make it quite clear that the contract was made upon the personal responsibility of the charterer and the consideration of the cash received in advance.

n. But the right of lien does not depend upon the solvency of the charterer. In fact, the lien is of importance to t e owner only, as his remedies against the charterer are precarious. Accordingly, the cases on the subject are cases w ere the charterer was in default. In Raymond v. Tyson, ere was a large arrear of charter-money. In The Kimball,

V Tyson, 17 Howard, 53; Chandler v. Belden, 18 Johnson, 2 Id 5«o Sch°°ner Volnnteer, 1 Sumner, 551; Certain Logs of Mahogany, ticut 104. RUggleS V‘ Bucknor, 1 Paine, 358; Pinney v. Wells, 10 Connec-Welsb 7 *• The St. Katherine’s Dock Company, 14 Meeson & Venus m ’ ^'°Ster v ' ^°^y> $ Hurlstone & Norman, 705; Kirchner v.

’ -kt k oore’s Privy Council, 361; Tamvaco v. Simpson, 19 Common

+ 17 453 J affirmed’ 1 Law Reporter, C. P. 363. t 17 Howard, 53.

the charterers had become insolvent, and though the lien was sustained, it was not on this ground. In Alsager v. The. St. Katherine’s Dock Co.* the charterers were bankrupt, and the suit for the cargo was brought by their assignees, who were allowed to recover without paying freight. In Tamvaco v. Simpson,the acceptor for a portion of the freight in advance had become bankrupt.

The question whether there is a lien or not, depending as it does upon the charter containing terms as to payment, showing a credit given to the charterer inconsistent with a lien, must be determined by the charter itself, not by circumstances subsequently occurring. If, in fact, the owner has agreed to carry the cargo, without retaining a lien upon it, but looking to the personal responsibility of the charterers, whom he has agreed to trust for the freight, the charterer may sell the cargo in transit, as being free from freight, and his subsequent insolvency cannot charge it with a lien.

III. The common provision in a charter-party, binding the cargo to the ship and the ship to the cargo, is sometimes taken into consideration in determining whether the ship-owner intended to waive his lien for freight. It was so in The Kimball, cited on the other side. In this case, in lieu of such usual clause, the charter only binds the vessel and her freight, and does not bind the cargo. This unusual language is quite consistent with the provisions as to the time, manner, and place prescribed for the payment of the freight, which it is impossible to reconcile with any right to detain the cargo.

Mr. Justice CLIFFORD delivered the opinion of the court.

Assignees of the charter-party and of the bill of lading libelled the ship Bird of Paradise, her tackle, apparel, an furniture in a cause of contract, civil and maritime.

Breach of contract alleged in the libel is the refusal of t e master of the ship to deliver the cargo as stipulated in t e

* 14 Meeson & Welsby, 794. f 19 Common Bench, N. 8. 45.

charter-party and bill of lading. Voyage was from Liverpool to San Francisco, and the cargo consisted of nine hundred and fifty-two tons of coal. Terms of the charter-party, material to the inquiry are, that the freight shall “be paid in Liverpool on unloading and right delivery of the cargo,” at the rate therein prescribed, and in full of all other specified charges. “ Such freight is to be paid, say one-fourth in cash, and one-fourth by charterer’s acceptance at six months from the final sailing of the vessel, . . and the remainder by like bill at three months from date of delivery, at charterer’s office in Liverpool, of the certificate of the right delivery of the cargo agreeably to bill of lading, or in cash under discount at five per cent, per annum, at freighter’s option.” Other material clauses are, that the “vessel shall ” be addressed to the freighter’s agent abroad, that five hundred pounds sterling shall “ be advanced in cash at port of discharge on account of the freight,” and that “the ship and her freight are bound to this venture,” but it does not contain the usual clause that the cargo is bound to the ship. Bill of lading is in the usual form and contains the clause, “ they paying freight for the goods at the rate as per charter-party.” Sum advanced for first instalment of freight was subject to three months’ interest, at five per cent, per annum, and cost of insurance. Charter-party was signed by the claimants, and the bill of lading was signed by the master. Ship was loaded by the charterer, and it is proved she ai rived in safety at the port of destination with the cargo on oard. Consignees demanded the goods, but.the master refused to deliver the same unless the freight was paid contemporaneously with the delivery, placing the refusal upon the ground that the ship had a lien upon the cargo for the unpaid balance of the freight, but the libellants claimed that t ey were entitled to the delivery of the cargo without payll!g any freight except in the manner provided in the charter-party.

Cash instalment of freight was paid as stipulated in the charter-party. Acceptance of the charterer given for the second instalment, payable in six months from date, was delivered to thé claimants on the day the ship sailed from the port of departure. Before she arrived at the port of destination, the charterer failed in business, and became and is insolvent and bankrupt.

Payment of the acceptance was never made, and the proofs show that it is still held and owned by the claimants. Whole freight remains unpaid except the cash instalment paid before the ship sailed, and the five hundred pounds stipulated to be advanced in cash at the port of discharge. Amount due and unpaid is seven thousand and fifty dollars in gold, deducting the sum advanced at the port of discharge and including the residue of the last instalment and the unpaid and protested acceptance. Pending the suit, the cargo was delivered to the consignees under a stipulation that it should be returned to the master in case the claim of lien for freight should be sustained. Decree of the District Court was that the claim was unfounded; that the ship had no lien for freight on the cargo, and that the stipulation for the return of the cargo should be given up to be cancelled. Circuit Court affirmed the decree, and the claimants appealed to this court.

2. Equities of the case in view of the whole record are strongly with the ship-owner, but the questions presented for decision are questions of law and must depend upon the construction of the contract as expressed in the charter-party. Reference need not be made to the bill of lading, as it is in the usual form, and refers to the charter-party as the controlling evidence of the contract in respect to the matter involved in this controversy. Ship-owners, unquestionably, as a general rule, have a lien upon the cargo for the freight, and consequently may retain the goods after t e arrival of the ship at the port of destination until the payment is made, unless there is some stipulation in the char er party or bill of lading inconsistent with such right of reten tion, and which displaces the lien.

Dec. 1866.] The Bird of Paradise. 55b

3. Such a lien is regarded in the jurisprudence of the United States as a maritime lien, because it arises from the usages of commerce, independently of the agreement of the parties, and not from any statutory regulations. Legal effect of such a lien is, that the ship-owner, as carrier by water, may retain the goods until the freight is paid, or he may enforce the same by a proceeding in rem in the District Court. But it is not the same as the privileged claim of the civil law, nor is it an hypothecation of the cargo which will remain a charge upon the goods after the ship-owner has parted unconditionally with the possession. Although the lien is maritime and cognizable in the admiralty, yet it stands upon the same ground with the lien of the carrier on land, and arises from the right of the ship-owner to retain the possession of the goods until the freight is paid, and is lost by an unconditional delivery to the consignee.*

Parties, however, may frame their contract of affreightment as they please, and of course may employ words to affirm the existence of the maritime lien, or to extend or modify it, or they may so frame their contract as to exclude it altogether. They may agree that the goods, when the ship arrives at the port of destination, shall be deposited in the warehouse of the consignee or owner, and that the transfer and deposit shall not be regarded as the waiver of the hen; and where they so agree, the settled rule in this court is, that the law will uphold the agreement and support the lien.f

4. Presumption is in favor of the lien as already explained, ut it may be modified, or it may be excluded or displaced y direct words, or by the insertion of some stipulation wholly incompatible or irreconcilable with the existence of such a right. Contracts of affreightment, like other commercial contracts, where the language employed is ambiguous oi of doubtful meaning, are subject to judicial construcmn, and it often happens that the terms of the instrument

* 1 Black, 113. t Mordecai ®. Lindsay (The Eddy,—Bep.), supra, p. 481.

in respect to the payment of freight and the delivery of the cargo are so inaptly chosen that it gives rise to very close and embarrassing questions. Where the stipulation is, that the goods are to be delivered at the port of discharge before the freight is paid, without any condition or qualification, it seems to be agreed that the lien of the ship-owner for the payment of the freight is waived and lost, as the right of lien is inseparably associated with the possession of the goods. Unless the stipulation is, that the delivery shall precede the payment of the freight, and the language employed as applied to the subject-matter and the surrounding circumstan res is such as clearly to show that the change of possession is to be absolute and unconditional, the lien is not displaced, as the presumption of law is the other way, which is never to be regarded as controlled, except in cases where the language employed in the instrument satisfactorily indicates that such is the intention of the parties.

Terms of the stipulation in that case were, that the freight should be paid “ in five days after the vessel’s return to, and discharge in, the return port of the voyage.” Argument of the respondent was, that the word discharge, as used in the clause, meant not merely the unloading of the brig, but the delivery of the cargo to the charterer or owner of the goods. Aided, however, by the terms of the bill of lading, which referred to the charter-party, the court came to the opposite conclusion, and held that the word discharge, as there used, meant merely the unlading of the cargo from the ship, without any reference to a delivery to the owner or consignee. Exactly the same rule was adopted and applied by this court in the construction of a similar clause of a charter-party in a case heard and decided at the last term.

6. Repeated decisions of the courts in Westminster Hall have adopted the same general rule, and in some decisions of very recent date the same principles have been applied in cases entirely analogous to the one now before the court. Settled doctrine of those courts is, that the law merchant gives to the ship a lien for the freight, or rather the right of the ship-owner to retain the goods until the freight is paid.f They hold it to be a common law right, not cognizable in the admiralty; but they admit that special clauses in the charter-party, or bill of lading, inconsistent with it, operates as a waiver, and may destroy the right.J

Unless, however, the special agreement is absolutely inconsistent with the retention of the goods, the waiver or displacement is not shown, and the right remains.§

Terms of the charter-party in the case of Foster v. Colby,* were substantially the same, so far as respects the principal question in this case. Freight was payable in that charter-party in three instalments, but the terms of the first two payments are unimportant. Material clause reads as follows, to wit: “The remainder in cash, two months from the vessel’s report inwards, and after right delivery of the cargo, or under discount at five per cent, per annum, at freighter’s option.” Held, that the charter-party did not create any lien in respect of that part of the freight which was payable two months after the vessel’s inward report, although the charter-party contained the stipulation that the owners of the ship should “ have an absolute lien on the cargo for all freight, dead freight, and demurrage.” Latter clause was intended, as the court held, not to enlarge the right of lien for freight, as generally understood, but to include dead freight and demurrage within the operation of the general provision.

7. Words of the charter-party in this case are that the third instalment shall be paid by “bill, at three months from date of delivery at charterer’s office, in Liverpool, of the certificate of the right delivery of the cargo, agreeably to the bills of lading.” Giving the usual meaning to language, it is plain that the intent of the parties was that the elivery of the goods should precede the payment of the freight, and it is equally clear that the delivery was to be without qualification and unconditional. Certificate of right delivery of the cargo could not be obtained until the vessel was discharged, and the cargo delivered, and, if forwarded y the next steamer, a month would elapse before it could e delivered at charterer’s office in Liverpool, which would

extend the credit to four months from the delivery of the cargo.

8. Appellants contend that, inasmuch as the charterer failed in business and became a bankrupt before the vessel arrived at the port of discharge, the case is taken out of the operation of those rules of law, even in respect to the last instalment. Basis of this argument is a supposed analogy between the ship-owner as against the shipper, and the vendor of merchandise as against the vendee, as exemplified in the law of stoppage in transitu, but it is not perceived that any such relation exists between the ship-owner and the charterer, or that there is any foundation whatever for the argument. Intention of the parties in the contract of affreightment, as in other commercial contracts, must be ascertained from the language employed, the subject-matter, and the surrounding circumstances, and it is clear that the question of construction cannot be affected in the smallest degree by the subsequent solvency or insolvency of one of the contracting parties. Credit was given in this case to the charterer for the payment of the last instalment of the freight of four months from the time when the goods were required by the terms of the instrument to be delivered to the consignee at the port of discharge, and it is too plain for argument that the subsequent insolvency of the charterer can neither erase that clause from the charter-party or shorten the term of the credit.*

Insolvency of shipper occurring while the goods are in transit, or before they are delivered, will not absolve the carrier from his agreement as made, nor authorize him to retain the goods until the freight is paid, unless the ien exists independently of that occurrence, f

Established rule in this court is, that a bill of exchange or promissory note given for a precedent debt does not extinguish the debt or operate as payment of the same, unless such was the express agreement of the parties. Agreement of the parties filed in the case and made a part of the record, shows that the acceptance was presented to the bankrupt court, and that it has never been paid, and it is not pretended that it is of any value. Valueless as the acceptance is, the objection if made, that it had never been tendered to be cancelled, would be a mere technicality, but no such objection is made, and as the parties agree that it has never been negotiated it must be understood that any such objection is waived. Payment of that instalment of the freight therefore is not proved, and there is no evidence in the record tending to show that the lien for that instalment of the freight was ever waived. Ship-owner under the circumstances bas a right to stand upon the original contract and to seek his remedy to that extent of his claim in the form to which it originally belonged as fully as if the acceptance had never been given.*

Entire freight under this charter-party, except the small a vance stipulated to be made at the port of discharge, was to be paid in the port of shipment. Port of shipment was a so the port where the ship lay when the contract was made, an the terms of the contract afford the most plenary evience that the parties regarded the charter-money stipulated 0 e paid at that port as freight in the usual and proper sense in which that word is understood in the maritime law.f Suppose, however, a different rule could be applied to

Tb?Aamer Lawrence, 1 Black, 533; The Kimball, 3 Wallace, 45;

x n.n2-Ve’ l°otb Admr. 206 ; Bark Chusan, 2 Story, 457. 8 Elli« * p? Middl9ton> 2 Common Bench, N. S. 152; Neish v Graham.

ac burne 510 ; Gracie v. Palmer, 8 Wheaton, 605.

562 The Bird of Paradise. [Sup. Ct.

the sum actually paid or advanced before the vessel sailed. Still that concession, if made, would not affect the question as to the second instalment in this case, because that instah ment was not advanced in money, and has never been paid. Separated from the acceptance, which, under the decisions of this court, was not payment, it presents the ordinary case of a promise to pay freight and a failure to fulfil the contract, and in this point of view the case is clearly distinguishable from the decision in which it is held that sums stipulated in charter-parties to be paid in advance and not dependent on the carrier’s contract do not have the incidents of freight, and are not protected by the lien of the ship-owner, unless by usage or special contract.*

11. Foundation of those decisions is, that money advanced as freight cannot be recovered back, not even in case the ship is lost on the voyage, and the freight is never earned; because, as it is said, payment determines the lien, and anything accepted as an advance, such as a bill of exchange, is the same thing, unless there is an express agreement to the contrary. Undoubtedly an actual payment determines the lien to that extent, but it is not correct to say that a bill of exchange has the same effect, unless it be so agreed between the parties; and the settled doctrine in this country is, that freight paid in advance is not earned unless the voyage is performed, and that the shipper may recover it back, if f°r any fault not imputable to him the contract is not fulfilled.f

Usually the charter-party contains a clause binding the ship to the merchandise and the merchandise to the ship, but the law-merchant, as already explained, imposes that mutual obligation even if it be omitted.f

Decree of the Circuit Court must be reversed with costs, and the cause remanded for further proceedings in conformity to this opinion. Libellants, upon the payment of the amount of the protested acceptance and interest and costs of suit, will be entitled to a decree that the stipulation given for the return of the goods shall be given up to be cancelled. Otherwise the libel must be dismissed.

Decree reversed with costs.

United States v. The Commissioner.

A mandamus will not be granted to compel the performance of an office, such as the issuing of a patent for land, in a case where numerous questions of law and fact arise, some of them depending upon circumstances which rest in parol proof yet to be obtained, and where the exercise of judicial functions, some of them of a high character, is required. Nor will it be granted where it is reasonable to presume that there are persons at the time in possession under another title, and who therefore should have an opportunity to defend it.

Ihis was a writ of error to the Supreme Court of the District of Columbia.

2 Parsons on Contracts (5th ed.), 286; Abbott on Shipping, 462 ; Fragano Long, 4 Barnewall and Creswell, 219 ; Cooke v. Wilson, 1 Common /ni i 2*S’ 153 ’ Maclachlan on Shipping, 353; Tindall v. Taylor, 4 Ellis

ac burn, 219; Same case, 28 English Law and Equity, 210. r Casoo, Davies, 184; 2 Parsons on Contracts, 303; 2 Parsons’s M. •U 661.

The case in that court arose on a petition by McConnell for a mandamus to command the Commissioner of the General Land Office to cause to be prepared, signed, countersigned, recorded, and issued, a patent to him for the north part of the south half of section No. 10, T. No. 39 W., range 14 E., situate in the city of Chicago. There was a rule to show cause, and a return thereto by the Commissioner of the Land Office.

The right to the patent was founded upon a certificate of purchase by private entry at the register’s office in Chicago, on the 15th June, 1836. The relator complained that he had been denied the patent, since th«e issuing of the certificate down to the present time, some twenty-eight years, though repeated applications had been made by him for the same.

The return set up that one Robert Kenzie entered this same land, under a pre-emption right, as early as the 7th May, 1831, five years before the relator’s entry, and, that the latter’s certificate of purchase on the 1st June, 1834, was cancelled on the 20th August thereafter, by the commissioner on account of this previous entry.

Several objections were taken to the legality of the entry by Kenzie, such as, that it was made in the wrong district, and, if in the right one, that the entry on this part of the south half of section No. 10 was in violation of law; which objections were answered by allegations that an act of Congress was passed confirmatory of the defective entry; an also, that the parcel entered and contested belonged to t e north and not to the south part of the section.

It further appeared that a patent was issued to Kenzie 4t March, 1837, in pursuance of an act of Congress passed July, 1836; but to this it was objected that the rights of t e relator had become vested by the previous entry of 1st une, 1836. .

The court below refused to grant the mandamus, an case was now here for review.

Jfr. McDougal, for the relator.

Mr. Justice NELSON delivered the opinion of the court.

Where the merit of the several objections and questions made in this case lie, we do not undertake to determine, nor can they be determined, understandingly, upon this record. Many of the acts of the parties, and of the officers, the registers, and commissioners of the Land Office, may be valid or void, depending upon the facts and circumstances attending them at the time, and which rest in parol, and are the proper subject of proofs. We have referred to them for the purpose of showing that this case is not one to which the remedy by mandamus can be applied. It calls for the exercise of the judicial functions of the officer, and these of no ordinary character. Indeed, however eminent, it is plain no intelligible decision could be made without the aid of facts not within his knowledge, nor attainable by proofs consistent with the proceedings in the case of mandamus. The duty is not merely ministerial, but involves judgment and discretion, which cannot be controlled by this writ. Besides, it appears that Kenzie was in possession when his entry was made in May, 1831, and was there in 1836; and, as the premises are situated in the settled part of the city of Chicago, it is but reasonable to presume that persons are at this time in possession of the same premises under his title who should have an opportunity to defend it. The relator has mistaken his remedy, for if his title under the certificate is valid, and presents a superior equity over the opposing title, as in the case of Lyttle et al. v. The State of Arkansasft and Lindsey v. Hawesft the appropriate remedy is by bill in equity.

Whether or not a mandamus will lie in any case to compel t e issuing of a patent is a question not necessarily involved in this case; we have not therefore examined it, and express no opinion upon it. We have found no case in which is power has been exercised.

atents are to be signed by the President in person, or in

his name by a secretary, under his direction,* and countersigned by the recorder of the General Land Office.f Judgment of the court below

Affirmed.

Mr. Justice MILLER did not sit in the case.

Goodrich v. The City.

1. Where a matter is directly in issue and adjudged in a court of common law, that judgment may be set up as an estoppel in a court of admiralty. 2. Where an action is brought in a State court against a city for its neglect to do a public duty imposed on it by law (as ex. gr. to keep its harbor free from obstructions hidden under water), the declaration going upon its neglect to do the thing at all, a judgment in such State court that it was not bound to do the thing at all, may be used as an estoppel in another suit (a libel in admiralty), where the allegation of the libel is that, being bound to keep the river clear, the city began to clear it—entered upon its duty—but never finished the work, by which neglect to finish it the injury occurred; the cause of action being otherwise the same.

Goodrich filed a libel in the District Court for the Northern District of Illinois, in a cause of damage, civil and mari time, against the City of Chicago, in personam.

The libel alleged that he was the owner of the steamer Huron ; and that, on the 27th of March, 1857, while leaving the port of Chicago, the vessel ran against a sunken wrec '.n the Chicago River and was sunk; that, prior to this damage done, the city had been vested with exclusive jurisdiction over the river as a common public navigable river and highway by the State of Illinois, and with all the neces sary means to provide funds for defraying the expenses inci dent thereto; that the city accepted the act of the legis a-ture, and had ever since assumed the exclusive jurisdiction and control over the river harbor; that on the 20th day of ay, 1856, the city had passed an ordinance for the removal, wit out delay, of any obstruction to free navigation, by whic i was ordained that whenever there should be in the arJ^

any vessel insecurely fastened, adrift, sunken, &c., and which might require to be fastened, raised, &c., it should be the duty of the harbor master to secure, raise, or remove such vessel without delay; that in April, 1856, the city appointed one Ingalls harbor master under the said ordinance, and at the time of said damage he was such harbor master, vested with full control and management of the harbor, and that it was his duty, as agent of the said city, to remove all such obstructions to the free and safe navigation of said harbor; that in November, 1856, a schooner had been sunk near the mouth of the river, and became an obstruction to the safe navigation of it; that the city assumed the exclusive right to remove the same, and did, by their said harbor master, undertake and commence the removal of the said sunken wreck, by hitching thereto a steam-tug, and thereby attempting to raise and remove the same as they were bound, to do, but did not complete the work, nor raise and remove the said wreck, as they had exclusively undertaken to do, but worked on the said sunken vessel, endeavoring to raise the same, and pulled several pieces of timber from the said vessel in the attempt to raise and remove her, but without raising or removing the same, did (as the libellants believed'), loosen the said vessel in its bed; and negligently and carelessly left the vessel until the 29th of March, 1857, by means ivhereof during that time, by the action of the winds and currents, the wreck became drifted further into the channel of the river, and during all the time aforesaid was kept in the channel by the respondent under water, so that the same could not be seen; and without fixing or placing any buoy or signal to mark t e place of the said sunken wreck; and that in consequence of the negligence of the city the said steamer Huron ran on to said sunken wreck and was sunk, in ignorance of its ocality and without fault on her part, with damage to the libellants of $19,487.

The declaration in the suit thus set up as an estoppel alleged :

1. That under a statute of the State of Illinois of February 14, 1851,* it became the duty of the city to remove and prevent all obstructions in the Chicago River and harbor, and that the city was authorized to levy and collect taxes for that purpose.

2. That the city assumed to discharge the duties imposed, and for that purpose levied and collected taxes, and controlled and regulated the said river and harbor, and that by means thereof and by the said State statute, it became and was its duty to remove and prevent all obstructions therein.

3. That the city undertook and entered upon the discharge of its duties and obligations by the passage of necessary ordinances, rules, and regulations, authorized by the act of 1851, whereby it became and was its duty to remove all obstructions, &c.

4. That the Chicago River and harbor was a public highway and navigable stream, and that the city, not regarding its duty in the premises, on the 29th of March, 1857, and for five months prior thereto, had negligently and carelessly suffered and permitted the obstruction spoken of to remain in the river, and that the city, although knowing that the wreck was under water and out of sight, neglected to place any buoy or signal thereon to indicate its position.

5. That by reason of the premises, on or about the 29t day of March, 1857, the Huron in passing through the river was accidentally and without any want of care an skill on the part of the owners, or those in charge of her, run on or against the said sunken wreck.

Argument against the estoppel.

The District Court held judgment in the Supreme Court of the State no estoppel; and the case being deemed otherwise clear, gave judgment for the libellant.

On appeal to the Circuit Court, that court held, that the decision in the State court was “an authoritative adjudication, denying that there is an obligation imposed by law on the City of Chicago to remove obstructions from its river and harbor,” and that it was thus decisive, against the libellants, of the present action. The decree of the District Court was accordingly reversed;—the Circuit Court (Davis, J.) expressing, at the same time, the opinion “that the facts of the case would sustain the claim made by the libellants, if the court was relieved from the embarrassment ” ot the decision referred to; and stating further “ that if this question was an open one in Illinois, the court should have no hesitation in holding that a legal obligation is imposed on the city to remove obstructions from the river; and that it is bound to make full redress to every person injured by reason of its failure to perform its duty; that the true interest of commerce, and the best interests of the city, would be promoted by such a construction, and that it is sanctioned by principle and authority.”

The case was now here on appeal from this decree by the Circuit Court reversing the former one of the District Court.

Messrs. Goodwin, Larned, and Goodwin, for the appellants, owners of the steamer:

Argument against the estoppel.

averment in the declaration, as there is pre-eminently in the libel, that the city ever undertook or assumed to remove the wreck, or entered upon the work of such removal; but, on the contrary, the declaration excludes the idea of such assumption of responsibility or undertaking on the part of the city by its positive allegation that the city neglected and refused to take any such action, but permitted the wreck to remain, and would not undertake its removal.

And the Supreme Court being called upon to decide, on general demurrer, as to whether such a declaration had set forth a legal ground of action against the city, decided that it did not, because, the city were not bound to undertake the removal of any obstruction in the harbor, except they elected so to do; that it was a matter of legal option with them whether they would or would not, in any given case, exercise the power so conferred; that the passage of ordinances and the providing of the proper officers and means to perform the work in such cases as they should elect to undertake it, did not impose any legal obligation to undertake any particular work; and therefore, notwithstanding all the allegations of the declaration respecting the charter, and the ordinances, and the appointment of harbor-master, were admitted, yet it did not follow that the city were bound to undertake the removal of this or any other obstruction; and so no sufficient cause of action was set forth in the declaration.

Now, giving to this decision full effect, it does not touch the case made by this libel. It decides that a case will not lie against the city for mere omission to act, for the mere non-assumption of the power conferred over the harbor by the charter, by neglecting to undertake to remove a particular obstruction.

The question of liability, in all cases where the city ha elected to act under the power, and had entered upon an assumed the work, is therefore an open question, and this court is at liberty to decide such a case in conformity wit their own views of the law and the facts.

It should be quite sufficient in a cause where the merits o

Argument in favor of the estoppel.

the case seem confessedly with the plaintiff, and where sound reason and authority sustain his action, to show that the case made by the libel is not within the express point decided by the Supreme Court of Illinois; and this court should, perhaps, if necessary, be “ astute ” to take the case out of that decision.

As a mere technical bar, the force of a judgment at law, when pleaded in admiralty, may be doubted on authority. In England,* it has been held, by Dr. Lushington, in The Ann and Mary, that an action at common law for damages caused by a collision, will not affect the jurisdiction of the admiralty, and that the verdict of the jury, upon the facts of the case, will not be conclusive upon the judgment of the admiralty court. If this is so, the whole matter of the State decision falls to the ground.

That a judgment, on general demurrer to a declaration, is a judgment on the merits, conclusive in a subsequent suit where the parties and the cause of action are the same, is reported law so far back as the time of Crokef and Coke,J and has been frequently decided with us.§

And notwithstanding the dicta of Dr. Lushington to the contrary, in The Ann and Mary, there is no reason why the rule should not apply with as much force in courts of admiralty as in regard to any other.

In laylor v. The Royal £hzon,|| it was held that the penency of a replevin in a State court to settle the right of property in a vessel is a bar to a libel in the admiralty to settle the same right between the same persons, &c. Grier, J., there says:

tion that this is a case of concurrent jurisdicu ecause of the different form and course of proceedings in a

2 W. Robinson, 190. f Ferrer et al. v. Arden, 2 Croke Eliz. 668.

I Ferrer’s Case, 6 Reports, 7. pLB°UChaUd V' 'Dias> $ Denio, 243; Robinson v. Howard, 5 California, 428;

n M°°re’ 16 Alabama, 17. H 1 Wallace, Jr., 333.

court of admiralty. This proceeding, it is said, is in rem, that all the world is a party, while the action of replevin is a mere personal action of trespass; that, in the one case, the thing passes into possession of the court; in the other, the delivery is made by the officer, without any order or judgment of the court. These distinctions, though ingenious, do not constitute a difference or furnish an argument to justify the court of admiralty in disregarding the disposition made of this property by the law of Pennsylvania, whether it be temporary or final."

Again, says the same judge:

“ It is true that the court of admiralty, from the peculiarity of her process and modes of proceeding, is more competent to render speedy and exact justice to the parties than courts of common law (more especially in disputes between part-owners); but it cannot, on that assumption, disregard the disposition made of this property by the law of Pennsylvania, whether it be temporary or final.”

This reasoning, though applied by his honor to what was in effect a plea of lis pendens, applies with equal, if not greater force, to a plea of res adjudicata.

Now, in this case, the declaration shows that the same parties are attempting to litigate the same subject-matter, or points or questions in admiralty that were adjudicated and settled in the State court.

Look at the declaration as set out supra, p. 568, and at the libel as set out just before it, at pp. 566-7. It will be seen that the allegations in both are, in legal substance, the same. And the parties and subject-matter of both actions are undeniably the same. They are both actions to recover damages sustained by reason of an alleged obstruction in t e Chicago River. The vessel injured is the same,—the Huron, the time and cause of injury are the same; the liability o the city is placed on the same ground in both actions, to wi, a duty imposed in both cases by the same act of the legis. ture, and the same ordinances of the city, and the neglect o perform or discharge it.

It matters not, here, and so far as the defence of an estoppel is concerned, whether the decision in the State court was, right or wrong. It is sufficient that the parties appellant selected that tribunal to litigate their supposed grievances. They must be content with the result. If a party, when defeated in one tribunal, is permitted to take his chance in another, there can be no end to litigation; for if defeated in the second, he may in like manner resort to a third, and so run the chance of all the courts in the country. Litigation is harassing and vexatious enough to parties at best, but break down and destroy the doctrine of res adjudicata, and it would be intolerable, wholly.

Mr. Justice SWAYNE delivered the opinion of the court.

In the view which we have taken of the case, it will be necessary to consider but a single point.

The appellants filed their libel to recover damages for the sinking of their steamer Huron, in the Chicago River, near its mouth. The casualty was caused by the steamer running against a sunken wreck. The libel alleges that it was the duty of the city to have it removed, and that it was guilty of negligence in not having done so. It alleges further, that the city entered upon the work of removal, but abanoned it before the result was accomplished.

Among the defences set up by the answer of the respondent was, that of a final judgment in the Supreme Court of inois, upon a general demurrer to a declaration in an ac-10n at law by the appellants against the respondent for the same cause of action.

The court below sustained the defence, and upon this

and of the libel, we are constrained to say, there is no such difference in the cases which they respectively make as can take this case out of the operation of the principles of res adjudicata*

Whatever the result might be here, if this obstacle were out of the way, we have no choice but to apply the law in this as in other cases.

Decree affirmed, with costs.

The Pearl.

A British vessel captured during the rebellion and our blockade of the Southern coast, by an American war steamer, on her way from England to Nassau, N. P., condemned as intending to run the blockade; Nassau being a port which, though neutral within the definition furnished by international law, was constantly and notoriously used as a port of call and transshipment by persons engaged in systematic violation of the blockade, and in the conveyance of contraband of war; the vessel and cargo being consigned to a house there well known, from previous suits, to the court> as so engaged; the second officer of the vessel, and several of the seamen, examined in preparatorio, testifying strongly that the purpose of the vessel was to break the blockade; and the owner, who was heard, on leave given to him to take further proof, touching the use he intended to make of the steamer after arrival in Nassau, and in what trade or business he intended she should be engaged in, and for what purpose she was going to that port, saying and showing nothing at all on those points.