The Planter.

fairly be inferred, that a waiver was intended, and the personal responsibility of the party only relied upon. Express contracts are generally made *for freight and seamen's wages, but this has never been supposed to [*345 operate as a waiver of a lien on the vessel for the same. There are certainly some of the older authorities which would seem to give countenance to the doctrine, that an express contract operated as a waiver of the lien; but whatever may have been the old rule on the subject, it is settled, at the present day, that an express contract for a specific sum is not, of itself, a waiver of the lien, but that to produce that effect, the contract must contain some stipulations inconsistent with the continuance of such lien, or from which a waiver may fairly be inferred. Hutton v. Bragg, 2 Marsh. 339; 4 Camp. 145, and the cases cited in note.

Applying these rules to the case before us, we can discover nothing (except as to $275, the balance for hauling out the boat, which will be noticed hereafter) inconsistent with the right of a lien, or indicating any intention to waive it. In the first contract, no time is fixed for the payment of the $1150; it became payable, therefore, as soon as the work was completed. And the repairs under the second contract were to be paid for as soon as the account was approved by Captain Jarreau. There is nothing, therefore, from which it can be inferred, that any time of credit was to be allowed. The balance of $275, for hauling out the steamboat, stands upon a footing a little different. That was to be paid in one month after the boat was launched and set afloat. A credit was here given and a credit, too, beyond the time when, in all probability, the boat would have left the port of New Orleans; for it can hardly be supposed, that it would have taken thirty days to load her. And by the Civil Code of Louisiana, Art. 2748, the privilege ceases, if the ship or boat is allowed to depart without exercising the right. As to this sum, therefore, the decree is erroneous.

3. The principal ground of complaint, under the third point made at the bar, is, that the appellants have been made to pay twice for some part of the work. That is, that part of the work which was to be done under the first contract, and for which they charged under the second contract. There is certainly some confusion growing out of the manner in which this work was carried on under the different contracts. The work which was to be performed under the first, was not completed, when the second was entered into, and both being carried on at the same time, might very easily occasion some mistake. And in addition to this, there was, under the first contract, some extra work to be done and paid for, over and above the stipulated sum of $1150, which rendered it still more difficult to keep the accounts for materials and labor under the different contracts, separate and distinct. The evidence was taken in writing, out of court, and no opportunity afforded for explanation upon these points. The district judge, feeling the difficulties growing out of these circumstances, ordered Wilson, one of the witnesses whose deposition had been taken and read in evidence, to appear and answer in open court. He was the clerk of the appellees, who had kept an account of the timber used and work performed; and on his examination, he swore, that all the charges and items for work done, in the account of the libellants, were over and above the work done under the first contract for $1150. That the libellants had hands at work at the repairs, under the contract, and the

were to pay $1150, has *been [*346

Magniac v. Thomson.

extra work, at the same time. That there is not a day's work, nor a foot of plank, charged in the account which was to be done under the first contract. This testimony leaves no reasonable doubt of the correctness of the account. By the second contract, payment was to be made, when the account was approved by Captain Jarreau; no formal approval appears to have been made; but he was a part-owner, and superintended the repairs, and one of the witnesses says, he was present when the account was presented to Captain Jarreau; who said, he was not surprised at it, because there was a great deal more work than he had any idea of; and that he did not think, at first, that she required so much. This, although not a direct, was an implied approval of the account.

The delay in not delivering the boat to the appellants by the time specified in the contract, was occasioned by her unexpected state and condition, and the extent of repairs required. *And besides, the delivery at *347] the time mentioned in the contract, was dispensed with by Captain

Jarreau.

Upon the whole, we are of opinion, that the decree of the district court, as to the $275, must be reversed, and in all other respects affirmed.

THIS cause came on to be heard, on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel: On consideration whereof, it is the opinion of this court, that the decree of the said district court as to the $275 is erroneous and should be reversed, and that in all other respects the said decree should be affirmed: Whereupon, it is ordered, adjudged and decreed by this court that the decree of the said district court in this cause, as to the balance of $275 for hauling out the steamboat, be and the same is hereby reversed, and that the said decree, in all other respects, be and the same is hereby affirmed; and it is further ordered, that each party pay his own costs in this court.

*348]

*HOLLINGWORTH MAGNIAO and others, Plaintiffs in error, v. JOHN R. THOMSON.

Bill of exceptions.-Marriage-settlement.-Fraud.-Preferences in assignment.

The whole charge of the circuit court was brought up with the record. This is a practice which this court have uniformly discountenanced, and which the court trusts a rule made at last term will effectually suppress.

This court have nothing to do with comments of the judge of the circuit court upon the evidence. Carver v. Astor, 4 Pet. 80-1, cited upon this point.

The question now before the court is, whether the charge to the jury in the circuit court contains any erroneous statement of the law; in examining it, for the purpose of ascertaining its correctness, the whole scope and bearing of it must be taken together; it is wholly inadmissible, to take up single and detached passages, and to decide upon them, without attending to the context, or without incorporating such qualifications and explanations as naturally flow from the language of other parts of the charge; the whole is to be construed as it must have been understood, both by the court and the jury, at the time it was delivered.'

Upon principle and authority, to make an ante-nuptial settlement void as a fraud upon creditors,

1 Spring Co. v. Edgar, 99 U. S. 659.

Magniac v. Thomson.

it is necessary that both parties should concur in, or have cognisance of, the intended fraud; if the settler alone intend a fraud, and the other party have no notice of it, but is innocent of it, she is not, and cannot be, affected by it. Marriage, in contemplation of the law, is not only a valuable consideration to support such a settlement, but is a consideration of the highest value, and from motives of the soundest policy, is upheld with a strong resolution; the husband and wife, parties to such a contract, are therefore deemed, in the highest sense, purchasers for a valuable consideration; and so that it is bona fide, and without notice of fraud, brought home to both sides, it becomes unimpeachable by creditors.

Fraud may be imputed to the parties, either by direct co-operation in the original design, at the time of its concoction, or by constructive co-operation, from notice of it, and carrying the design upon such notice, into operation.

Among creditors equally meritorious, a debtor may conscientiously prefer one to another; and it can make no difference, that the preferred creditor is his own wife.

Marriage articles or settlements are not required, by the laws of New Jersey, to be recorded, but only conveyances of real estate; and as to conveyances of real estate, the omission to record them, avoids them only as to purchasers and creditors, leaving them in full force between the parties.1

Magniac v. Thomson, Bald. 344, affirmed.

*ERROR to the Circuit Court of the Eastern District of Pennsylvania. In the circuit court, at October sessions 1826, a feigned issue [*349 was made up between the plaintiffs and the defendant, to try the question of the ability of the defendant to pay a debt acknowledged to be due to the plaintiffs, and for which judgments had been obtained in their favor. The competency of the defendant to satisfy the debt, depended on the validity of a certain marriage-settlement, made in contemplation of marriage between the defendant and Miss Annis Stockton, daughter of Richard Stockton, Esq., late of New Jersey, to which instrument Mr. Stockton was a party, he being, by its provisions, the trustee of his daughter. The marriage-settlement was as follows:

"Articles of agreement and covenant made and executed this 19th day of December, in the year of our Lord 1825, by and between John R. Thomson, Esq., late of the city of Philadelphia, of the first part, Annis Stockton, daughter of Richard Stockton, Esq., of the second part, and Richard Stockton, of the county of Somerset and state of New Jersey, father and trustee of the said Annis Stockton, of the third part.

"Whereas, a marriage is intended to be shortly had and solemnized between the said John R. Thomson and the said Annis Stockton; and whereas, the said Richard Stockton has promised to give unto his said daughter a certain lot or tract of land, belonging to him, situate in the county of Middlesex and state of New Jersey; directly opposite the mansion-house of the said Richard Stockton, between the old road to Trenton and the turnpike road, which consists of between four and five acres of land, be the same more or less, and is bounded on the north and south by the said roads, on the west by lands of Dr. John Vanclave, and the east by a line to be run from the north-east corner of the garden, now in the possession of Mrs. Abigail Field, to the said turnpike road, upon which said lot the said John R. Thomson has begun to build a house. Now, it is hereby agreed between the parties aforesaid, and the said Richard Stockton, for himself and his heirs, doth hereby covenant and agree to and with the parties of the first and second *parts, their heirs, executors and administrators, in consideration of the said marriage, and of the love and natural

1 See De Lane v. Moore, 14 How. 253.

[*350

Magniac v. Thomson.

affection he hath for his said daughter, that from the time of, and immediately after, the said marriage shall be solemnized, he, the said Richard Stockton, shall and will stand seised of the said lot and premises, and of all and singular the buildings and improvements which shall be erected and made thereon by the said party of the first part, to the uses, trusts and purposes hereinafter mentioned, and to none other, that is to say: in trust to permit the said John R. Thomson, and Annis his wife, during the time of their joint lives, to possess, live in, and occupy the said lot, house and premises, with the appurtenances, free and clear of all demands; and in case the said parties of the first and second parts do not think proper to inhabit and reside in the said premises, that he, the said Richard Stockton, will let out, upon lease, the said premises, and receive the rents, issues and profits thereof, and pay over the same to the said Annis, party of the second part, during the joint lives of the parties of the first and second parts. And if the said John R. Thomson should survive the said Annis Stockton, and have issue by her, then in trust to permit the said John R. Thomson, during his life, to inhabit and occupy the said premises, if he elect so to do, free and clear as aforesaid, and pay over the said rents and profits, as he shall receive the same, to the said John R. Thomson, for the maintenance and support of him and his family, without he, the said John R. Thomson, being at any time thereafter accountable to any person or persons for the said rents and profits. And after the death of the said John R. Thomson, in trust for the child or children of the said marriage, in equal shares, as tenants in common, in fee-simple; and if there shall be no child or children of the said marriage, then, upon the death of either of the said parties of the first and second parts, in trust to convey the said premises to the survivor in fee-simple.

"And the said John R. Thomson, for himself, his heirs, executors and administrators, doth covenant and agree to and with the parties of the second and third parts, that if the said marriage shall take effect, and in consideration thereof, he will, with all convenient speed, build and furnish

the said house, in a suitable manner, as he shall judge fit and *proper; *351] and that the said erections, improvements and furniture, together with the changes and additions which shall be, from time to time, made, shall be subject to and included in the said trusts, as far as the same aro applicable to each species of property. And further, that he will, in the space of one year from the time the said marriage shall take effect, place out on good security, in stock or otherwise, the sum of $40,000, and hand over and assign the evidences thereof to the said party of the third part, who shall hold the same, in trust to receive the interest, profits or dividends thereon, as they shall, from time to time, arise, to the said party of the second part, during the joint lives of the parties of the first and second parts, and that her receipts for the same, and also for what may be produced under the before-mentioned trusts, shall be good and valid, notwithstanding her coverture. If the said party of the second part should die before the said party of the first part, and there should be issue of the said marriage, then in trust to receive the said interest, profits and dividends, and pay the same over, from time to time, to the said party of the first part, during his life, for the support of himself, and the maintenance and education of his children, without his being subject to any account as aforesaid; and after his death, in trust for any child or children of the said marriage, in equal

Magniac v. Thomson.

shares; and if the said Annis should survive the said John, and there be issue of the said marriage, then to pay over the same to the said Annis, during her life, for her maintenance, and the support and education of the said children, and without her being liable to any account for the same; and after her death, in trust for the child or children of the said marriage, in equal shares; and if there shall be no child or children of the said marriage, then, upon the death of the said John R. Thomson, or Annis his wife, in trust, to assign and deliver the said securities, and all moneys remaining due to the one who shall survive, to his or her own uses.

"And it is further agreed and covenanted by and between the parties aforesaid, that it may be lawful for the said John R. Thomson to act as the agent of the parties aforesaid, in all the matters aforesaid, by the permission and under the control, if need be, of the said trustee, and to change, and, from time to time, alter the said *securities, as occasion may [*352 require, and take new securities in their stead, so as that the fund, as aforesaid settled, shall always be kept good. And it is also hereby further agreed and covenanted by and between all the said parties, that the said trustee shall not be held guilty of breach of trust, although he does not act personally in the premises, unless he be expressly desired and requested so to do by one of the other parties hereto, or those claiming under them; and that he shall not in any manner be held liable as trustee, unless for acts of wilful neglect or misconduct."

The plaintiffs and the defendant were merchants residing in Canton, in China, previous to the 25th of March 1825, when the defendant returned to the United States, leaving an agent, Rodney Fisher, in Canton, with full powers to transact his business, and to bind him by commercial contracts, and who was introduced to the plaintiffs as his agent, by the defendant. Very large loans were made to the agent of the defendant, by the plaintiffs, which were employed in loading the vessels of Edward Thomson; the goods being pledged to pay the loans at Philadelphia, and the shipments so made being for the use of Edward Thomson. Edward Thomson was without credit or friends in Canton, and the credit of his son, John R. Thomson, was thus employed by his agent to load the ships; the defendant's compensation consisting of the commissions on the transactions.

On the 22d of November 1825, Mr. Fisher, as the agent of the defendant, borrowed of the plaintiffs $30,000, on the pledge of an invoice of goods valued at about $42,000; and on the second of December 1825, $33,000 more were borrowed on the pledge of another invoice valued at upwards of $44,000, together exceeding more than $63,000 on pledges of goods exceeding, in invoice amount, $86,000. Besides these loans, the defendant obtained others in China, where he also owed some other debts, inconsiderable in amount, and after his return home, he signed his father's respondentia bonds for $200,000. On all these loans and respondentia, there were large sums lost; the goods pledged to the plaintiffs did not sell for half [*353 the invoice prices; and the defendant lost moreover upwards of $20,000 by his father's failure. He was not possessed of any real estate, mortgages, public stock or other productive property; and whatever he was worth, if anything, was involved in his father's affairs.

On the 19th of November 1825, Edward Thomson's insolvency was made public. On the 19th of December 1825, the defendant, having arrived from