General Average. deterioration of the articles by their own perish- and from the general maritime law of nations, able quality; or whatever ambiguity may have is, that if the cargo or ship, or any part of either, once existed, from the term "average" being be voluntarily sacrificed or exposed to danger, used in different senses, that is, as signifying a for the common safety, the part saved shall concontribution to a general loss, and also a particu- tribute to repair the loss sustained, provided the lar or partial injury falling on the subject in-object for which the sacrifice was made, be atsured; it is well understood, at the present day, tained." Caze et al. v. Reily, 3 Wash. C. C. R. with respect to such articles, that the underwriters are free from all partial losses of every kind, which do not arise from a contribution towards a general average. Biays v. The Chesapeake Insurance Co., 7 Cranch, 415; 2 Cond. Rep. 552. 6. A vessel and her cargo were insured from New York to Gibraltar, and on her voyage she was captured and carried into Algesiras. After considerable detention, she was permitted to sail for New York, with a cargo on freight for New York, but she was lost on the voyage. The expenses incurred by the detention of the vessel at Algesiras are subjects of general average; but her repairs at that place were held to be entirely chargeable to the vessel, the outward cargo having been landed before they were done. All the repairs which were necessary by any of the risks insured, were payable by the underwriters. Hurtin v. The Phanix Insurance Co., 1 Wash. C. C. R. 400. 298. 9. An intention to consign to inevitable loss, goods thrown overboard, forms no part of the reason assigned by the Rhodian law for contribution, and is not necessary to authorize the claim to contribution. Ibid. 10. The object always is, to incur a partial loss, and to risk a minor or contingent danger, to avoid the more probable or certain loss of the whole. Ibid. 11. It is sufficient, to justify a claim to con tribution, if the danger sought to be avoided be so imminent that the measure adopted may be beneficial to all. Ibid. 12. If the exposure of the vessel be made for the common safety, and be successful in relation to a part of the cargo, it is immaterial whether her total loss was produced immediately by the stranding; or consequently, by placing her in a situation which effected her destruction. Ibid. 13. If the ship be lost, there can be no contribution, because the object for which the jettison was made, was not allowed. In case of a general shipwreck, there can be no contribution, because it was voluntary. Ibid. 124. 7. A policy was underwritten on a vessel for twelve months. In the course of her voyage during this period, she sailed from Providence, bound to New Orleans, with a cargo on board belonging to the owner of the ship, and encoun- 14. The owner of a ship is not liable for bartered a gale, and was compelled to cut away her ratry of captain and crew, beyond the sum menmasts and rigging, and to return to New York tioned in the charterparty; nor for repairs of the for repairs, where it was found that the repairs ship, if warranted by the owner to be kept would cost more than half her value. The cargo staunch during the voyage. But, in case of was taken out and sold by the owners, who had loss or expense by necessary deviation, both insured the same. The claim was now for a vessel and cargo must contribute in general total loss of the vessel, she having been aban-average. Campbell v. Alknomac, Bee's D. C. R. doned to the underwriters. In adjusting the loss, it was held that the cutting away of the masts and rigging was a general average, to be borne by the ship and cargo, in the same manner as if they belong to different owners. In such a case, if the owners of the ship and cargo are different, the owner of the ship may receive the whole amount of his loss, without any deduction of the general average due on the cargo. But when the ship-owner is also owner of the cargo, the amount due from the cargo may be deducted from the total loss on the ship, by the underwriter. Potter v. The Providence Wash-boat of a ship, on a whaling voyage, and who ington Insurance Co., 4 Mason's C. C. R. 298. 8. The schooner Julia, on her voyage from France to Philadelphia, being chased by a British frigate, and her capture being deemed inevitable by the captain, he, with the advice of the officers and crew, ran her on shore at Long Branch, in New Jersey, and, before the enemy could board her, a large part of the cargo was saved; after which, she was burnt. The mas ter claimed to retain the goods saved, as subject to freight, general average, and expenses. The court said: "The Rhodian law de jactu is the parent of the law of maritime contribution. The principle to be deduced from the Rhodian law, VOL. I.-68 15. When, in the course of a voyage, a ship, from the ordinary decay, requires to be repaired at an intermediate port, the expenses of such repairs are not the subject of general average. Ross v. The Ship Active, 2 Wash. C. C. R. 226. 16. General average is incurred where the expenses or losses arose in a case of emergency not produced by the misconduct or unskilfulness of the master, and not resulting from the ordinary circumstances of the voyage. Ibid. 17. A seaman whose feet were frozen in the was severely injured while in this service, is entitled to be cured at the expense of the ship; but the expenses of the same are not to be deemed a general average on all who are concerned in the voyage. It is strictly a charge on the ship-owners, and comes out of their earnings, or arises from their proprietary interest in the voyage. 1 Sumner's C. C. R. 203. 18. The brig Hope, with a cargo, bound from Alexandria, in the District of Columbia, for Barbadoes, insured in Alexandria, was assailed, while standing down the Chesapeake bay, by a storm which soon after blew to almost a hurricane. The vessel was steered towards a point 806 GEORGIA. on the shore for safety, and was anchored in three fathoms water, the sails furled, and all efforts were made by using the cables and anchors to prevent her going on shore. The gale increased, the brig struck adrift, and dragged three miles, the windlass was ripped up, the chain cable parted, and the vessel commenced drifting again, the whole scope of both cables being paid out; the brig then brought up below Craney Island in two and a half fathoms water, where she thumped or struck on the shoals on a bank, and her head swinging round brought her broadside to the sea. The captain finding no possible means of saving the vessel and cargo, and preserving the lives of the crew, slipped her cables, and run her on shore, for the safety of the crew and preservation of the vessel and cargo: the vessel was run far upon a bank, where, after the storm, she was left high and dry, and it was found impossible to get her off. The lives of all the crew were saved, the whole cargo of the value of five thousand three hundred and thirty-five dollars, insured for four thousand nine hundred and twenty dollars, was taken out safely, and the vessel, her tackle, &c. were sold for two hundred and fifty-six dollars. Held, that the insurers of the cargo were liable for a general average. The Columbian Insurance Company of Alexandria v. Ashby and Stribling, 13 Peters, 331. 19. The question of contribution cannot depend upon the amount of the damage sustained by the sacrifice of the property, for that would be to say that if a man lost all his property for the common benefit, he should receive nothing, but if he lost a part only, he should receive full compensation. No such principle is applied to the case of goods sacrificed for the common safety. Why then should it be applied to the total loss of the ship for the like purpose? It is the deliverance from an immediate impending peril, by a common sacrifice which constitutes the essence of the claim. It is the safety of the property, and not the voyage, which constitutes the foundation of general average. Ibid. 20. A consultation by the captain with the officers of the vessel, before running her on shore, with a view to her preservation, and that of the passengers and cargo, may be highly proper, in cases which admit of delay and deliberation, to prevent the imputation of rashness and unnecessary stranding by the master. But if the propriety and necessity of the act are otherwise sufficiently made out, no objection can be made to it. Ibid. 21. The freight of a vessel, totally lost by being run on shore for her preservation and that of the crew and cargo, ought to be allowed to the owner of the vessel as the subject of general average, the cargo of the vessel having been saved by the stranding. Ibid. 22. In cases of general average, the master and owners may retain all goods of the shippers, until their share of the contribution towards the average is either paid or secured. United States Wilder, 3 Sumner's C. C. R. 308. See INSURANCE, Vol. II. GEORGIA. tain in 1763, did not alter the boundaries of 1. The proclamation of the king of Great Bri Georgia. Fletcher v. Peck, 6 Cranch, 87; 2 Cond. Rep. 308. the power of disposing of the unappropriated treaty with the Cherokee Indians by any subse- settled the limits of Franklin county, such set- pos evidence that her former opinions on the subject gia, must act in conformity with the law from 1791, the collector was authorized to sell land seas," in the proviso or saving clause of the sta- are liable, in equity, for the payment of his Georgia Land Titles. 10. By the confiscation act of Georgia, a debt | due to the plaintiff on bond, by a citizen of the state of Georgia, had become forfeited to the state, he having been attainted by an act of the legislature of that state for adhering to the British cause in the war of the revolution. In a suit instituted by him for the debt, upon the act of the legislature being pleaded in bar by the obligor, he replied that the acts of the legislature were contrary to the constitution of the state and void. Held, that the confiscation acts of Georgia were valid. Basil Cooper v. Telfair, 4 Dall. 14; 1 Cond. Rep. 211. 11. The act of the legislature of Georgia of 4th May, 1784, did not vest in the state debts due by a citizen of Georgia to a partnership, some of the members of which were citizens of South Carolina, and one of whom was a subject of Great Britain. State of Georgia v. Brailsford, 3 Dall. 1; 1 Cond. Rep. 8. 12. In a suit against a state, the service of process on the governor, or chief executive magistrate, and on the attorney-general of the state, is a regular service of the same. Chisholm's Executors v. The State of Georgia, 2 Dall. 419. 13. An exemplification of a grant of land under the great seal of the state of Georgia, is, per se, evidence, without producing or accounting for the non-production of the original. It is record proof of as high a nature as the original. It is a recognition, in the most solemn form, by the government itself, of the validity of its own grant, under its own common seal, and imports absolute verity, as a matter of record. Patterson v. Winn et al., 5 Peters, 233. 14. The common law is the law of Georgia, and the rules of evidence belonging to it are in force there; unless so far as they have been modified by statute, or controlled by a settled course of judicial decisions and usage. Upon the present question it does not appear that Georgia has ever established any rules at variance with the common law; though it is not improbable that there may have been, from the peculiar organization of her judicial department, some diversity in the application of them in the different circuits of that state; acting as they do, independent of each other, and without any common appellate court to supervise their decisions. Ibid. 15. By the act of the legislature of Georgia, of 15th December, 1810, the assignment or endorsement of a promissory note, is made sufficient evidence thereof, without proving the handwriting of the assignor. The judiciary act of 1789, declares that the laws of the states, except where the constitution, treaties or statutes of the United States require otherwise, are to be rules of decision in the courts of the United States, in trials at common law, where they apply. The supreme court does not see any sufficient reason for construing the act of congress, so as to exclude from its provisions those statutes of the several states which prescribe the rules of evidence in civil causes in trials at common law. M'Neil v. Holbrook, 12 Peters, 84. GEORGIA LAND TITLES. 1. In general, the validity of a patent for lands can be impeached only for causes anterior to its being issued, in a court of equity: but if it is absolutely void upon its face, or the issuing thereof was without authority, or was prohibited by statute, or the state has no title, it may be impeached collaterally in a court of law in an action of ejectment. Doe ex dem. Patterson v. Winn et al., 11 Wheat. 380; 6 Cond. Rep. 355. 2. The several statutes of Georgia, comprising the land law, being in pari materia, are to be construed as one statute; and the act of 1787 did not prohibit the issuing of a patent to any one person for more than 1000 acres of land. The proviso in the act of February 17th, 1783, limiting the quantity to that number of acres, is confined exclusively to head rights. Ibid. 3. A grant made by the British governor of Florida, after the 4th of July, 1776, within the territory lying between the Mississippi and the Chatahouchee rivers, and between the 31st degree of north latitude, and a line drawn from the mouth of Yazoo river due east to the Chatahouchee, is invalid as the foundation of title in the courts of the United States. Harcourt et al. v. Gaillard, 12 Wheat. 523; 6 Cond. Rep. 628. 4. In order to bring himself within the protection of the act of cession by the state of Georgia to the United States, the party must show that he was "actually settled" on the land, on the 27th October, 1795, the period mentioned in the said act of cession. Hickie v. Starkie et al., 1 Peters, 98. 5. It seems that a settlement made on the land by another person, who cultivated it for the proprietor, would be sufficient to constitute "an actual settlement" within the meaning of the law; though the proprietor should not reside in person on the estate, or within the territory. Ibid. 6. Undoubtedly, the presumption is in favour of the validity of every grant issued in the forms prescribed by law; and it is incumbent on him who controverts it to support his objections. The whole burthen of proof lies on him. But if his objections depend on facts, those facts must be submitted to a jury. If opposing testimony be produced, that testimony, also, must be laid before the jury; and the court may declare the law upon the fact, but cannot declare it on the testimony. Patterson's Lessee v. Jenckes, 2 Peters, 227. 7. In the nature of things, the supreme court perceives no reason why the grant of the land in controversy should not be good for land which it might lawfully pass; and void as to that part of the tract for the granting of which the office had not been open. It is every day's practice to make grants for lands which have in part been granted to others. It has never been suggested, that the whole grant is void, because a part of the land was not grantable. Ibid. 235. 8. The principle, that a patent conveying lands lying partly within, and partly without the terri tory retained by the Indians, was void as to so 808 GIFT. GOODS SOLD, &c.—GOVERNMENT OF THE UNITED STATES. Gifts. Goods sold and delivered.-Government of the United States. uch as lay within it, and valid for the residue, was settled by the supreme court in the case of Danforth v. Wear, 9 Wheaton, 673. This decision was made on a patent depending on the statutes of North Carolina, which contain prohibitions at least as strong as those of Georgia. Ibid. 236. 9. The supreme court of the United States have not jurisdiction in the matter of a bill filed by the Cherokee nation of Indians, against the state of Georgia, praying for an injunction to prevent the execution of certain laws passed by the legislature of Georgia, relative to lands within the boundaries of the lands of the Cherokee nation; the Cherokee nation not being "a foreign state" in the sense in which the term "foreign state" is used in the constitution of the United States. The Cherokee Nation v. The State of Georgia, 5 Peters, 1. 10. The act of limitations of Georgia does not require an entry into lands within seven years after the title accrued, unless there be some adversary possession or title to be defeated by such entry. Shearman v. Irvine's Lessee, 4 Cranch, 367; 2 Cond. Rep. 142. GIFT. 1. Mourning-rings given by third persons to the wife after her marriage are purely personal, and cannot be touched either by the husband or by his creditors. In the matter of Grant, 2 Story, C. C. R. 312. 2. A parent may make gifts to his children, if they be proper and suitable in his circumstances and condition; if they be not so, they enure to the benefit of his creditors; but if the gifts have been purchased in part by third persons, the assignee, under the bankrupt law, can only claim the amount paid by the father. Ibid. 3. Gifts after marriage, by third persons, may be expressly made for the sole and separate use of the wife, and if the husband consents to her receiving them, he and his creditors are bound by the trust. Ibid. 4. In equity, gifts of personal ornaments or jewellery, made by a husband to his wife, for her sole and separate use, will be good against his personal representatives, in case of his death; but not against his own power to reclaim them, during his life, nor against the right of his creditors to take them in satisfaction of their debts. Ibid. GOODS SOLD AND DELIVERED. of the goods. M'Coul v. 111; 4 Cond. Rep. 58. Lekamp, 2 Wheaton, 2. A bill of parcels delivered by J., stating the goods as bought of D. and J., is not conclu sive evidence that the goods were the joint property of D. and J.; but the real circumstances may be explained by parol evidence. Harris v. Johnston, 3 Cranch, 311; 1 Cond. Rep. 543. GOVERNMENT OF THE UNITED STATES. 1. The federal government is one of delegated powers. All powers not delegated to it, or inhibited to the states, are reserved to the states, or the people. Briscoe et al. v. The Bank of the Commonwealth of Kentucky, 11 Peters, 257. 2. Where the heads of the departments of the government are the confidential officers of the government, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. Marbury v. Madison, 1 Cranch, 137; 1 Cond. Rep. 267. 3. The President of the United States, by signing the commission, appointed Mr. Marbury a justice of the peace for the county of Washington, in the District of Columbia; and the seal of the United States affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and the appointment conferred on him a legal right to the office for the space of five years. Having this legal right to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of the country afford him a remedy. lbid. 4. Some point of time must be taken, when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised; and the power has been exercised, when the last act required from the person possessing the power has been performed. This last act is the signature of the president. Ibid. 5. The President of the United States has a discretionary power to allow such additional number of rations to officers commanding at separate posts, as he may think just, having respect to the special circumstances of each post. The law granting this authority is not imperative; and in the exercise of his discretion, the Presi dent may allow, or refuse to allow additional rations, as in his opinion he may deem proper. 1. Where a witness, a clerk to the plaintiff, swore that the several articles of merchandise contained in the account annexed to his deposition, were sold to the defendant by the plaintiff, and were charged in the plaintiff's day-book by the deponent and another person who is dead, and that the deponent delivered them, and fur-1 Peters, 296. ther swore, that he had referred to the original entries in the day-book: Held, that this was sufficient evidence to prove the sale and delivery 6. The secretary of war, as the legitimate organ of the President, under a general authority from him may exercise the power, and make Gunpowder.-Guardian and Ward. the allowance, to officers having separate com- | may establish; after the President had estabmands. lbid. 297. lished such regulations as he deemed necessary in relation to alien enemies, it was not necessary to call in the aid of the judicial authority, on all occasions, to enforce them; and the marshal could not act without such authority. Ibid. 7. The President of the United States, as the executive of the nation, has, as an incident of the office, a right to employ all the usual and customary means acknowledged in war, to carry it into effect. He may therefore authorize the capture of all enemy's property, wherever by the law of nations it may be lawfully seized; and is not restrained from authorizing captures on land. The Emulous, 1 Gallis. C. C. R. 563. 8. To contend that the obligations imposed on the President, to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution; and is entirely inadmissible. Kendall, Postmaster-General, v. The United States, 12 Peters, 524. 14. The provisions of the law of congress, intended to make the judiciary auxiliary to the executive, in effecting its great objects, and each department was to act independently of the other, except that the former was to make the ordinances of the latter the rule of its decisions. Ibid. 15. The President of the United States speaks and acts through the heads of the several departments, in relation to subjects which appertain to their respective duties; both military posts and Indian affairs, including Indian agencies, belong to the war department. A reservation of lands made at the request of the secretary of war, for purposes in his department, must be considered as made by the President of the United States. Wilcox v. M'Connell, 13 Peters, 498. 9. Congress, by a special act passed for the purpose, directed the accounts of certain mail contractors to be referred to the solicitor of the treasury, and that the amount found by the solicitor to be due to the contractors, should be passed to their credit, by the postmaster-general of the United States. The postmaster-general refused to allow to the credit of the mail con- 16. The government of the United States havtractors, the whole sum found to be due to them ing insisted, and continued to insist, through its by the solicitor of the treasury, and a mandamus regular executive authority, that the Falkland was asked from the circuit court of the District islands do not constitute any part of the domiof Columbia, to be directed to the postmaster- nions within the sovereignty of the government of general, commanding him to conform to the act Buenos Ayres to regulate, prohibit, or punish; it of congress and the report of the solicitor of the is not competent for a circuit court of the United treasury. In opposition to the prayer for the States to inquire into, and ascertain by other evimandamus, it was urged that the postmaster-dence the title of the government of Buenos Ayres general was alone subject to the direction of the President of the United States, with respect to the execution of the duty imposed on him by the law under which the solicitor of the treasury acted; and this right of the President was claimed as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. By the court: This doctrine cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results to all cases falling within it, would be clothing the President with a power to control the legislation of congress, and paralyze the administration of justice. Ibid. 10. The act of congress relative to alien enemies, passed 6th July, 1798, having authorized the President to direct the confinement of alien enemies, necessarily conferred all the means for enforcing such orders as he might give in relation to the execution of those powers. Lockington v. Smith, 1 Peters' C. C. R. 466. 11. The marshals of the several districts are the proper officers to execute the orders of the President, under the act relative to alien enemies. Ibid. 12. It is to the department of state that a reference must be made for the official acts of the President, in relation to such public measures as are not immediately connected with the duties of some other department. Ibid. 13. The President may direct some other department to mak; known such measures as he 68* to the sovereignty of the Falkland islands. Williams v. The Suffolk Insurance Company, 13 Peters, 415. 17. When the executive branch of the government which is charged with the foreign relations of the United States, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department. Ibid. GUNPOWDER. In a case in which a vessel insured had been destroyed by the explosion of gunpowder, the court said: "if taking gunpowder on board a vessel insured against fire, was not justified by the usage of the trade, and, therefore, was not contemplated as a risk by the policy, there might be great reason to contend, that if it increased the risk, the loss was not covered by the policy." Waters v. The Merchants' Louisville Insurance Company, 11 Peters, 213. |