Hugg v. Augusta Insurance and Banking Co. 7 H.

several cases, but especially from the cases of Dyson v. Rowcroft, 3 Bos. & Pul. 474, and Roux v. Salvador, 3 Bing. N. C. 266, and S. C. 1 Bing. N. C. 526.

In Roux v. Salvador, in the exchequer, it was observed that the argument rested upon the position that, if, at the termination of the risk, the goods remained in specie, however damaged, there was not a total loss; and it was admitted that the position might be just, if, by the termination of the risk, was meant the arrival of the goods at their place of destination; but that there was a fallacy in applying those words to the termination of the adventure before that period by a peril of the sea, as the object of the policy is to obtain an indemnity for any loss that the assured might sustain by the goods being prevented by the perils of the sea from arriving in safety at the port of destination.

It was also remarked, that if the goods once damaged by the perils of the sea, and necessarily landed before the termination of the voyage, were, by reason of that damage, in such a state, though the species be not utterly destroyed, that they could not with safety be reshipped into the same or any other vessel, or, if it was certain that before the termination of the original voyage the species itself would disappear, in any of these cases, the circumstance of their existence in specie at the forced termination of the risk, was of no impor

tance.

The jury had found in that case that the hides were so far damaged by a peril of the sea that they never could have arrived at the port of destination in the form of hides; and as the destruction was not complete when they were taken out of the vessel at the port of distress, they became, in their then condition, a salvage for the benefit of the party who was to sustain the loss.

In respect to the first point, therefore, the court direct that it be certified to the circuit court, that, if the jury find that the jerked beef was a perishable article within the meaning of the policy, the defendant is not liable as for a total loss of the freight, unless it appears that there was a destruction in specie of the entire cargo, so that it had lost its original character at Nassau, the port of distress, [* 608 ] or that a total destruction would * have been inevitable from the damage received, if it had been reshipped before it could have arrived at Matanzas, the port of destination.

The second point certified assumes that the vessel, notwithstanding the disaster, was in a condition to carry on the cargo, or that another could be procured; and the question is, whether the plaintiff is entitled to recover, as for a total loss of freight, if it appeared that it was for the interest of the insured and insurer of the cargo, on account of

Hugg v. Augusta Insurance and Banking Co. 7 H.

the damaged condition of the portion sold, that it should have been sold, and not carried on to Matanzas, the port of delivery.

Many of the considerations stated in our examination of the first point certified have a direct application to this one; as it there appears that the interest of the insured, or of the underwriter of the cargo, is not taken into the account, nor in any way regarded in determining whether or not a total loss of the freight has happened from any of the perils insured against, but whether there has been a destruction of the entire cargo in specie, or such damage received as would inevitably prevent the arrival of any portion of it in specie at the destined port.

The interest of the owner of the cargo may frequently be adverse to that of the owner of the ship; for although the goods remain in specie, and in that condition capable of being carried on, it may be for the interest of the owner, or of the insurer of the cargo, to have it sold in its then damaged state at the intermediate port, instead of taking the risk of further deterioration. But, in that case, the owner, or those representing him, must act upon their own responsibility; for, if he elects to receive the goods voluntarily at a place short of the port of destination, he is responsible for the freight. The loss cannot be total or partial at his will, or as his interest may dictate.

It was said in Griswold v. New York Ins. Co. 328, (which was an action on a policy on freight,) that whether it would have been wise or foolish in the shipper to have sent on the flour in the condition it was in, was a question not to be put to the plaintiffs. It was none of their concern. The risk of the value of the cargo at the port of delivery, lay with the owners of the cargo. All that the plaintiff's had to do by their contract, was to provide the means to take on the cargo, by repairing their ship, or procuring another.

Other considerations may arise as between the owner and insurer of the cargo, but it is not important now to go into them.

On looking into the facts in this case, it will be seen that the portion of the beef landed at Nassau, and sold, was wet and heated;. and that the board of health had recommended to the

* authorities that it should be removed as soon as it conven- [* 609 ] iently could be without too great a sacrifice of the property. It is obvious, therefore, that the perishable condition of the article must be taken into consideration in deciding upon the obligation of the master, in the emergency, to repair his vessel, or to procure another, for the purpose of sending it on to the port of delivery. If it should be made to appear that the repairs or procurement of another vessel would necessarily produce such a retardation of the voyage as would, in all probability, occasion a destruction of the article in

Hugg v. Augusta Insurance and Banking Co. 7 H.

specie before it could arrive at the port of destination, or, from its damaged condition, could not be reshipped in time consistently with the health of the crew or safety of the vessel, or would not be in a fit condition from pestilential effluvia, or otherwise, to be carried on, it then was the duty of the master to sell the goods for the benefit of whom it might concern.

The cargo being in a perishable condition, the extent of the repairs, or difficulty of procuring another vessel, and consequent delay attending the same, are material considerations influencing his judgment in deciding upon the necessity of a sale; for it would be unreasonable to require him to subject his owner to this expense, when, at the same time, a strong probability existed that the cargo would not be in a condition to be reshipped. 18 Johns. 208; 6 Cow. 270; 1 Bing. N. C. 526; 3 ibid. 266; 3 Brod. & Bing. 97; S. C. 6 Moore, 288; 6 Taunt. 383; 1 Holt, 48; 3 Kent's Com. 212, 213; 2 Phillips, 331 et seq.

The quantity and value of the portion saved are also material circumstances to be considered in exercising a sound discretion in respect to the extent of the repairs required to be made, or of expense in the procurement of another vessel, with a view to the earning of salvage for the benefit of the underwriter on freight. The owner of the cargo is liable for any increased freight arising from the hire of another vessel; and unless it can be procured at an expense not exceeding the amount of the freight to be earned by completing the voyage, the underwriter on freight has no right to insist upon this duty of the master. Beyond this, it becomes a question between him and the owner or underwriter of the cargo. 3 Kent's Com. 212; Shipton v. Thornton, 9 Adolph. & Ellis, 314; Searle v. Scovel, 4 Johns. Ch. 218; American Ins. Co. v. Center, 4 Wend. 45; 2 Phillips, 216.

In respect to the second question, therefore, we direct it to be certified to the circuit court, if the jury find that, from the condition

of that portion of the cargo sold at Nassau, it was for the [* 610] interest of the insured and insurers of the cargo *that it should have been so sold, and not transported to Matanzas, still, the plaintiffs are not entitled to recover as for a total loss of freight, provided their own vessel could have been repaired in a reasonable time, and at a reasonable expense, so as to perform the voyage, or they could have procured another at Nassau, the port of distress, and have transshipped the portion sold in specie to the port of destination.

The third question is, assuming that the plaintiffs are entitled to recover, is the policy on the amount mentioned for one entire voyage

Hugg v. Augusta Insurance and Banking Co. 7 H.

round from Baltimore out, and home again; and are the defendants entitled to deduct from the amount insured the freight earned in the voyage from Baltimore to Rio upon the outward cargo.

The policy provides, that the defendants, in consideration of $156.25, agree to insure the plaintiffs, &c., on freight of the bark Margaret Hugg, at and from Baltimore to Rio Janeiro and back to Havana or Matanzas, or a port in the United States, &c., to the amount of $5,000 upon all kinds of lawful goods, &c., beginning the adventure upon the said freight from and immediately following the lading thereof aforesaid at Baltimore, and continuing the same until the said goods, wares, and merchandise shall be safely landed at the port aforesaid.

It is insisted, on the part of the defendants, that the voyage insured is one entire voyage from Baltimore out to Rio Janeiro, and then to Matanzas, or home; and that they are entitled to a deduction of the freight earned on the outward cargo from Baltimore to Rio.

The court are of opinion, that, upon a true construction of the policy, the insurance was upon every successive cargo that was taken on board in the course of the voyage out and home, and is to be applied to the freight at risk at any time, whether on the dutward or homeward passage. This was the construction given to these terms in a freight policy in Davy r. Hallett, 3 Caines, 16, and The Columbian Ins. Co. v. Catlett, 12 Wheat. 383. The insurance was regarded as, in effect, covering freight upon separate voyages out and home, to the amount of the valuation; and in the former case the payment of double premium was deemed a pretty sure index to the intent of the parties that the policy should attach on the outward or homeward freight according to events, and was to be valid and operative as long as there was aliment to keep it alive. All the considerations urged in favor of this construction in the cases referred to apply with equal force to the policy in question.

The court direct, therefore, that it be certified to the circuit * court, that, assuming the plaintiffs are entitled to [*611 ] recover, the defendants are not entitled to deduct from the insured the freight earned on the voyage from Baltimore to Rio upon the outward cargo, as the policy is not for one entire voyage round from Baltimore out, and home.

Peck v. Jenness. 7 H.

PHILIP PECK AND WILLIAM BELLOWS, Copartners, trading under the Firm of PHILIP PECK AND COMPANY, Plaintiffs in Error, v. JOHN S. JENNESS, JOHN GAGE, and JOHN E. LYON, trading under the Name and Firm of JENNESS, GAGE, AND COMPANY, Defendants in Error.

7 H. 612.

An attachment on mesne process, under the laws of New Hampshire, creates a lien, protected by the proviso of the second section of the bankrupt act of 1841, (5 Stats. at Large, 442.) and not defeasible by the interposition of the plea of a discharge of the bankrupt in bar of the action.

Over a suit pending in the court of common pleas of the State of New Hampshire, or any question involved therein, the district court of the United States sitting in bankruptcy, could exercise no control, either directly, or by enjoining the plaintiff.

THE case is stated in the opinion of the court.

C. B. Goodrich, for the defendants in error.

No counsel contrà.

[ * 618 ]

*

GRIER, J., delivered the opinion of the court.

The defendants in error, Jenness, Gage, and Co., instituted this suit against Philip Peck and William Bellows, in the court of common pleas of Cheshire county, New Hampshire, demanding the sum of $2,000, for goods sold and delivered. The action was served according to the practice of that State, on the 10th of October, 1842, by the attachment of the goods, chattels, and lands of the defendants. The cause was continued till April term, 1844, when Aaron P. Howland, assignee in bankruptcy of each of the defendants, was, on motion, admitted by the court to come in and defend in their names. He pleaded severally their application to the district court of the United States, at Portsmouth, on the 26th of November, 1842, for the benefit of the bankrupt law;' on which they were decreed bankrupts, on the 28th day of December, 1812. That Howland was appointed assignee, and that defendants severally received a certificate of discharge on the 21st of June, 1843.

To these pleas the plaintiff's below replied, that, before the filing of said petitions by the defendants, to wit, on the 8th of October, 1842, the plaintiffs in good faith sued and prosecuted out of the court of common pleas their writ of attachment against the defendants for a just debt; by virtue of which the sheriff attached and took into his custody and possession, as security for such judgment as the plaintiffs in their said suit might obtain, certain goods and chattels

15 Stats. at Large, 440.