to Thomas Price. By the fourth section of the Confirming Act of 1829, it is provided, "that the confirmations of all the claims provided for by this act shall amount only to a relinquishment forever, on the part of the United States, of any claim whatever to the tracts of land and town lots so confirmed, and that nothing herein contained shall be construed to affect the claim or claims of any individual or body politic or corporate, if any such there be." And by the fifth section of said act, the reg ister and receiver of the land office at St. Stephens were invested with power, within their district, to direct the manner in which all claims to lands and town lots which have been confirmed by that act should be located and surveyed; having reference to the laws, usages, and customs of the Spanish government on the subject, and also to the mode adopted by the government of the United States, pursuant to the Act of March 3, 1803. And by section sixth, certificates of confirmation and patents were ordered to be granted for all lands and town lots confirmed by the act.

According to the act, the claim of Joshua Kennedy (representative of Thomas Price) was duly surveyed on the 2d of February, 1836, and in May, 1837, a patent was taken out by Kennedy for the land described in the survey. The calls in the patent, having any connection with the present controversy, are as follows: "Thence north, 69° 5' east, 15 chains 44 links, to the ancient margin of the River Mobile, 593*] being *34 links west of the south angle of St. Louis and Water streets; thence north, 66° west, nine chains and seventy-six links, to the southeast corner of the Orange Grove tract granted to John Forbes & Co." The next line runs north, 82° west, with the southern boundary of Forbes & Co.'s tract.

The southeast corner of the Orange Grove tract is an iron-bound stake, well known, and from which the Spanish survey made by Collins runs due north, and from that line east to the channel of the river the land was added by the grant of the Intendant-General Morales, in 1807.

The line of Kennedy's grant fronting towards the river runs 66 degrees west of north, and it is contended that Kennedy, as a front proprietor, is entitled to claim a riparian right to the channel of the river, according to lines drawn at right angles to the front line and from each terminus thereof, unless some other claim shall interfere; and it is insisted that the addition made to Forbes & Co.'s grant in 1807 cannot hinder the assertion of Kennedy's riparian right, because the addition was made after Spanish authority ceased, and for so much the grant of 1807 is void, and being out of the way, Forbes & Co. can only claim as front proprietors, riparian rights in like manner that Kennedy himself claims; and to extend Forbes' southern line east, and Kennedy's lines at right angles, as above stated, would produce a conflict of riparian rights incident to the respective grants, the lines crossing each other at the ironbound stake, forming an acute angle at the stake, and widening towards the channel of the river; and this angle, it is assumed by those claiming under Kennedy's grant, should be divided between the two grants, but in what proportions we are not informed. This assump. HOWARD 7. U. S., Book 12.

tion the State court rejected, and held that Forbes & Co.'s grant took all the land to the channel of the river north of a direct extension of its southern boundary, and thereby cut off the pretension of Kennedy to the incident of alluvion.

Suppose it to be true that the addition made to Forbes & Co.'s grant in 1807 was void, for want of authority in the Spanish government, or for any other reason, and that Kennedy's grant was entitled to divide the alluvion as an incident to it, and that the State court improperly rejected his claim, and wrongfully adjudged the land to Forbes & Co.-conceding all these assumptions, can this court revise and reverse the decision of the State court? The controversy respecting the alluvion drew in question no act of Congress, nor any authority exercised under the Constitution or laws of the United States, and therefore the decision of the State court could not be opposed either to the laws, or to any authority exercised under the laws, *of the United States. For the [*594 established construction and application of the twenty-fifth section of the Judiciary Act, we refer to the cases of Crowell v. Randell (10 Peters, 391, 398), McKinney v. Carroll (12 Peters, 68), and Armstrong v. Treasurer of Athens County (16 Peters, 284). In this case, as in that of McDonogh v. Millaudon (3 How., 693), the State courts were called on to construe a perfected Spanish title, and to settle its limits by applying the local law, and having done so, this court has no authority to revise the judgment; nor can we see how the case would have been different had Forbes & Co.'s grant been an elder patent emanating from the United States directly; as in such a case a controversy concerning the incidents of alluvion would not have drawn in question an act of Congress, or a survey made according to an act of Congress. We deem it useless to examine in detail the instructions proposed by the defendants below, and rejected by the court. The only one worthy of notice was that which rejected Weakly's survey of Forbes & Co.'s grant, made and approved in 1835. It could not change the grant, nor affect its validity in any degree, and could only be read to establish boundary as a matter of fact; and neither its admission nor rejection, when offered for such purpose, could give this court jurisdiction, no matter which side should be injured; and so this court, in effect, held in the case of Mackay v. Dillon (4 How., 447). The survey was an ex-parte proceeding for the purposes of the land office, and immaterial to Forbes & Co.'s title.

On careful examination, we are of opinion that no one question was raised and decided in the State courts that gives this court jurisdiction to revise such decision, and that therefore the case must be dismissed for want of jurisdiction.

In an insurance upon freight, there is no total loss of a memorandum article as long as the goods have not lost their original character, but remain in specie, and in that condition are capable of being shipped to their destined port, no matter what If, however, the articles are not capable of being carried, in specie, to the port of destination, arising from danger to the health of the crew or to the safety of the vessel; or the public authorities at the port of distress order the articles to be thrown overboard, from fear of disease, there would be a In construing the contract of insurance upon freight, the interest of the insured, or of the underwriters of the cargo, is not considered. Therefore, if the vessel is in a condition to carry on the cargo to the port of destination, or another vessel can be procured for that purpose, it is the duty of the owner of the vessel to carry it on, although it may

may be the extent of the damage.

total loss.

be for the interest of the insured and insurers of the cargo to sell it at the port of distress.

If so sold, the insured cannot recover for a total loss of freight.

But although it is the duty of the owner of the vessel, either to repair bis own or to procure another at the port of distress to carry on the cargo, yet, 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 specie, before it could arrive at the port of destination, or, from its damaged condi

tion, it could not be reshipped in time, consistent ly 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 became the duty of the master to sell the goods for the benfit of whom it might concern. A policy of insurance upon "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, to the amount of $5,000, upon all lawful goods, &c., beginuing 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," upon which a greater premium was paid than was usual for the outward voyage alone, must not be construed as a policy upon the round

Voyage.

The insurers were, therefore, not entitled to a deduction for the outward freight.

HIS case came up on a certificate of division

States for the District of Maryland.

The Reporter finds the following statement prefixed to the opinion of the court, as deliver ed by Mr. Justice Nelson:

This is an action upon a policy of insurance on the freight of the bark Margaret Hugg, at and from Baltimore to Rio Janeiro, and back to Havana or Matanzas, with liberty to touch and stay at any intermediate port in case of stress of weather, or for the purpose of transacting business. The amount, $5,000; premium, $158.25.

The policy contained the usual memorandum,

NOTE.-Memorandum articles in policy. See note

to Moreau v. U. S. Ins. Co., 1 Wheat., 219.

from average, and all others that were perishable in their own nature.

About four hundred tons of jerked beef were shipped on board the vessel at Montevideo, which were to be delivered in good order at the port of Matanzas or Havana to the consignees, they paying freight. The bill of [*596 lading was signed the 25th of April, 1842.

The vessel sailed from Montevideo on the

29th of April, and, after being out some fortyseven days, encountered a storm, and was driven on Gingerbread Ground, where she received considerable damage; the rudder was broken and unshipped, and as the extent of the damage could not be ascertained, it was deemed prudent, on consultation with the captain of a wrecking vessel and Bahama pilot, to go into Nassau for the purpose of a survey and repairs. The wind was fair for that port, but strong ahead in the direction of Matanzas. The ves sel was taken in charge of one of the wreckers, and arrived at Nassau on the second day, about the 20th of June, and grounded on the bar while entering the harbor, and under the charge of the king's pilot, and sustained a good deal additional damage.

A part of the beef had been thrown overboard to lighten the vessel while on the Gingerbread Ground; and a much larger quantity while on the bar at Nassau. She had leaked while on the ground in the former place, so that it was necessary to work the pumps every half hour; and at the latter, there was seven or eight feet of water in the hold, with some four teen men at the pumps.

The beef was so much damaged by the sea water that the board of health at Nassau refused to allow but about one hundred and fifty tons to be landed. The rest was ordered to be carried outside the bar, and thrown into the sea, for fear of disease; it was wet and very much heated, some of it so changed as to become green, and all emitting an offensive stench. The portion allowed to be landed was wet and heated, and not in a fit condition to be shipped; and the board of health recommended to the authorities, that it should be removed as soon as conveniently could be.

The vessel was surveyed after the cargo was discharged, and it was found that the rudder was entirely broken off, the forefoot gone, and the keel greatly shattered and damaged: and it appears to be conceded that she could not have been repaired at that port so as to have carried on the cargo, and that, if she value. She was repaired sufficiently to bring her home in ballast. It also appears that there was no vessel in port that could be procured to forward on the remaining cargo, even if it had been in a condition to be shipped.

The salvors libeled the vessel and cargo for salvage services in the Vice Admiralty Court of the Bahamas on the 30th of June, 1842, to which the master put in an answer on the 7th *of July, insisting that the libelants [*597 were entitled to compensation for pilotage only, and not for salvage.

The court, on the 18th of July, decreed $2,100 salvage to the libelants, for services rendered to the vessel and cargo. Appraisers of the vessel and cargo taken on shore had

been previously appointed; and, on an examination of the cargo, it was found to be so much damaged, and in such a condition, that they advised an immediate sale, as it was deteriorating in value daily.

The master assented to a sale, accordingly, which was ordered by the court on his application on the 1st of July. The net proceeds amounted to $2,664.92. The time occupied in an ordinary voyage from Nassau to Matanzas is three days, and to Baltimore ten.

It was proved by several masters of vessels, that the navigation at the place where the Margaret Hugg first grounded, and was visited by the pilots, was very hazardous, and that, under similar circumstances, they would have considered it their duty to have carried their vessel into the harbor at Nassau.

The regular premium for insurance of freight of the cargo covered by the policy for the outward voyage was about one and one-eighth per

cent.

Upon this state of facts appearing at the trial, the following questions were raised, and presented to the court, viz. :

1. It being admitted that the loss is to be adjusted according to the terms of the Balti more Insurance Company, if the jury find that jerked beef was a perishable article within the meaning of the policy, are the defendants liable as for a total loss of freight, unless the entire cargo was so totally destroyed that no part of it could have been carried to the port of destination even in a deteriorated and valueless condition?

2. If the jury find that, from the condition of that portion of the cargo sold at Nassau (occasioned by the disasters stated in the testimony), it was for the interest of the insured and insurers upon the cargo that it should be so sold, and not transported to Matanzas, is the plaintiff entitled to recover for a total loss of freight, provided his own vessel could have been repaired in a reasonable time, so as to perform the voyage in safety, or he could have procured another vessel, and have transmitted to the port of destination, in its deteriorated state, the portion sold at Nassau? And,

3. Assuming that the plaintiff is entitled to recover, is the policy on the amount mentioned for one entire voyage 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?

598*] *The cause was argued by Mr. Mayer and Mr. Nelson for the plaintiffs, and Mr. David Stewart and Mr. Johnson for the defendants. The following is a very brief sketch of the respective arguments:

Mr. Mayer, for the plaintiffs:

The premium was double what would have been demanded for half the voyage. Some of the beef was thrown out as spoiled, the rest landed, somewhat injured. Then came a libel for salvage, and a decree for it. No funds existing to pay it or make the necessary repairs with, a sale was ordered. We abandoned, and now claim for a total loss. The policy is a blank cargo policy, filled up with an insurance on freight. Does the claim arise where the articles are not entirely lost? In England the courts of Common Pleas and King's Bench

have decided differently. (3 Bos. & Pull., 474; Marshall on Ins., 227, 565; 2 Maule & Selw., 247-that the articles, though not lost, might be deemed extinct; 32 Com. Law Rep., 115; 1 Wheaton, 219, 225-case of memorandum articles; 2 Phillips on Insurance, 485—all the decisions cited; 6 Cowen, 270.)

The law was settled in England by the case of Roux v. Salvador (3 Bing. N. C., 266; S. C., 1 Bing., 526); and there is nothing contradictory in the decisions of this court. The case in 1 Wheaton depended on particular circumstances. If the beef had to be thrown overboard for the sake of health, it could not be considered any longer as beef for all commercial purposes. If the voyage is broken up, there is an end to freight; and it was broken up here by the perils insured against. There is no difference between memorandum and other articles, when a total loss ensues. (Marshall on Ins., 585; 12 East, 304; 15 East, 565; 6 Mass., 119, 318, where the cases are cited; 1 Wheat., 219.)

The vis major of the claim for salvage broke up the voyage and destroyed the property. The beef was in a fermenting state. The condition of the vessel was hopeless. As to the effect of vis major, 7 Com. Law Rep., 202. Second question certified.

This involves the discretion of the captain. The owner of the vessel is bound by his contract to carry the goods. If the perils of the sea require a transshipment, it is his privilege and duty to make it. But if there be a difficulty in obtaining a vessel, the master is not bound to pay an excessive freight. (7 East, 44: 7 Com. Law Rep., 364, same as 3 Brod. & Bing., 97; 36 Com. Law Rep., 156, same as 9 Adolph. & Ellis, 314; 4 Johns. Ch., 225; 7 Cowen, 584; 4 Wend., 54; 12 Johns., 107; Abbott on Shipp., 369, 461.)

*But if the court should think that it [*599 was the duty of the master to transship, then I say that, if there was ground of abandonment from vis major, the captain became the agent of the insurers, and they must be responsible for his errors. (9 Johns., 28.) If half the property is lost, it is not the duty of the master to transship.

The captain is the agent of the adventure, and if the jury justify him as to the vessel or cargo, his acts bind all parties. (5 Peters, 604; 1 Johns., 406.) The exigency would have justified a prudent man in acting as he did, if there had been no insurance. He is to act for the general good, mindful of the owners and insurers. (3 Moore, 133, quoted in 2 Phillips, 268.) Was not this a judicial sale? The judge ordered it, not upon the petition of the master, but as an order of the court. The opposite party appeared, and did not object to it. (1 Wash. C. C., 530.)

The third question relates to the quantum of recovery. The outward cargo belonged to the owners of the vessel, and thus, in fact, no freight was earned. But we are charged with a constructive freight. Suppose the owner could earn freight from himself, this is an open policy, and value must be proved. There is no evidence to show that the value of the outward freight was just half of the whole sum insured. It could not be a round voyage, because the owners sent out an adventure, and only intended to earn freight on the return. In an

open policy, we have only to show that we had that amount of interest when the loss occurred. We paid a premium, double of what we would have been charged for the outward voyage alone. It could not, therefore, have been intended as a round voyage. (3 Caines, 16; 7 Gill & Johns., 293; 12 Wheat., 383; 3 Wend., 283; 2 Wash. C. C., 89; 1 Rawle, 97; 33 Com. Law Rep., 124, or 3 Barn. & Adolph., 198; 4 Peck, 429; 3 Com. Law Rep., 480; 2 Starkie, 573.)

Mr. Stewart, for the defendants:

It is proper that some omissions of the opposite counsel should be supplied. In the first place, the captain knew that he was insured; the answer to the libel says so. In the next place, he could have prosecuted his voyage. The answer to the libel says, that "without any assistance from Demeritt and his party, he could have got the bark clear of the Gingerbread Ground, and could, without any other than the ordinary dangers of the sea, have proceeded in the prosecution of their voyage." In the third place, the condition of the cargo was not so bad. The report of the board of health, made on the 29th of June, 1842, says, that "the 600*] quantity of beef *which is housed in the store appears to the board to be in a sound condition, and fit for the purpose for which it was cured." This was made on the 29th. On the 30th, the captain petitioned for a sale, which took place on the 1st of July. In the affidavit to support the motion for a sale, the captain says he had intended, previous to the commencement of the action, that the sale of such beef should take place in the early part of the present week." What became of the cargo? În fact, it went to the very port of destination. The captain says, in his deposition, that Adderly 'bought the beef with the intention of shipping it to Matanzas." Strobel, the supercargo, says, the vessel had no means of her own to make the repairs with, but Mr. Starr, the agent of the underwriters, offered to advance money for repairs upon bottomry." The libel for salvage was contested, and limited to pilotage, and yet a sale took place.

As to the first question certified. The object of the policy is to protect underwriters by excluding small losses. Partial losses, therefore, are not recoverable, as long as part of the cargo remains not liable at all. 3 Bos. & Pull., 478. does not impugn this doctrine, because the articles were thrown overboard from necessity. In Roux v. Salvador there was a special verdict, in which the jury found that the hides would have lost their character from putrefaction. The court relied upon this. Of course there was a total loss. The counsel then referred to the following cases: Park, 191, 185; 2 Maule & Selw., 371; 2 Com. Law Rep., 55, or 7 Taunton, 154; 4 Martin, N. S., 640; 16 East, 214; 1 Caines, 196; 3 Caines, 108; 4 Johns., 139; 4 Wendell, 33; 7 Cranch, 415; 8 Cranch, 39; 3 Wash. C. C., 356; 1 Wheat., 59; 3 Mason, 429. From the time of 1 Wheaton to 3 Mason, the question was not mooted, and when it was, it was only upon the authority of 15 East. 5 Meeson & Welsby explains 15 East to have been an insurance upon each parcel. But here a part of the beef was good, and sold for fifty per cent. of its cost. From this loss our contract exempts us. The assured

warrant that they will not charge, except for general average. The vessel was within three days' sail of Matanzas, and if the jury find that beef was a perishable article, we cannot be liable.

The second question assumes that the vessel could have been repaired, or that another vessel might have been obtained. Could the act of the captain give the plaintiffs a right to recover in this action? The opposite counsel wish to make the cargo a test of the rule respecting freight; but the cargo is nothing to us. The agency of the captain binds all parties *who are within the contract of in- [*601 demnity, but not those who are beyond it. There was no necessity for a sale, if another vessel could have been had. (1 Johns., 205; 3 Johns., 321; 9 Johns., 21; 2 Pick., 104; 23 Pick., 405: 10 Com. Law Rep., 366.) These cases show that, if the captain could transship, it was his duty to carry on the cargo. The expense is nothing to us. It might have cost half the freight. (4 Wendell, 54.)

On the third question, Mr. Stewart cited and commented upon 20 Com. Law Rep., 342; 36 Com. Law Rep., 216.

Mr. Johnson, on the same side:

As to the first question. Certain articles are inserted in the memorandum, to guard against frauds upon the underwriters, because no one could tell whether or not the losses arose from the perils insured against. For example, it is impossible to say how far the injury to the beef proceeded from the perils of the sea, or whether or not it would have been putrid, if there had been no storms. Therefore we only insured against a total loss. The question assumes that the master could have carried on the beef in his own or some other vessel-in a valueless conditition, it is true. But does this make us liable? We may lay down these two proposi tions:

1st. The case cited from Wheaton establishes, that, if a vessel arrives at her port, the underwriters are not responsible, unless in case of general average.

2d. Where the vessel could go on, the same rule must be applied as if she had actually gone on. Otherwise, it is in the power of the captain to convert no loss into a total loss. The underwriters are placed completely in his power. In this case, if the vessel had pursued her voyage, the underwriters would not have been responsible. Originally, the doctrine was more extensive upon our side than now, because it was held that, if any article existed at all. the insurers were discharged. The case in 3 Bingham only corrects this in its vicious extent; it only makes the underwriters free, if the cargo arrives consisting of the same articles which composed it before-that is, if flour is still flour, hides are still hides, &c. The question of value is left out of view altogether. The question before us is, not whether the jury must find that the beef had ceased to be beef or not, but only speaks of its value. 1 Wheaton, 219, decides this. It says that the consideration of quantity or value is of no consequence. If therefore, ever so small a quantity of the arti cle arrives, or ever so much injured, the under writers are not responsible. The master's duty was to go on. The case of Roux v. Salvador does not *justify the sale at Nassau. [*602