limitations of *SHEARMAN v. IRVINE'S LESSEE. The act of ERROR to the circuit court for the district of Georgia does Georgia, in an action of ejectment, brought (on the not acquire an 15th of October, 1804,) by Irvine's Lessee against Shearlands within man, for a tract of land in Camden county, in the state 7 years after of Georgia. entry into crued, unless 66 the title ac- The defendant below took a bill of exceptions to the there be some refusal of the court to nonsuit the plaintiff on the trial, adversary because he had not proved an entry within seven possession or title to be de- years after the title of the grantees accrued, or any enfeated by such try by either of the heirs or persons claiming under the grantees within seven years after their titles respectively accrued." entry. * 368 The lessor of the plaintiff had produced in evidence two grants from the province of Georgia, in 1766, to Alexander Baillie, under whom he claimed title by descent, and whose heir at law he had proved himself to be. There was no evidence of title, or even of adverse possession, on the part of the defendant, before the bringing of the suit, other than the averment of ouster in the declaration, which was laid on the 10th of September, 1804; nor any evidence of title out of the lessor of the plaintiff. In support of his motion for a nonsuit, the defendant relied on the act of limitations of Geórgia, passed in the year 1767, by which it is enacted, "That all writs of formedon in descender, remainder, and reverter of any lands, &c. or any other writ, suit or action whatsoever, hereafter to be sued or brought, by occasion, or means of any title heretofore accrued, happened, or fallen, or which may hereafter descend, happen, or fall, shall be sued or taken within seven years next after the passing of this act, or after the title and cause of action shall or *may descend or accrue to the same, and at no time after the said seven years. And that no person or persons that now hath, or have any right or title of entry into any lands, &c. shall at any time hereafter. make any entry, but within seven years next after the passing of this act, or after his or their right or title shall or may descend or accrue to the same, and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made." The verdict and judgment below being against the defendant, he sued out his writ of error. There being no appearance in this court for the plaintiff in error, P. B. Key, for the defendant in error, opened the record, and prayed an affirmance of the judgment. 1. Because, from the facts disclosed, after the descent had been cast nearly thirty years, and no adverse possession at any time proved, the jury had a right to presume and find an actual entry within seven years; if such actual entry was necessary. 2. Because, in this case, on the facts disclosed, no entry was necessary. Two things only must concur to complete a title. Possession, and the right of property. The right of property is proved to be in the plaintiff as heir of the patentee; and possession by operation of law accompanies the title, unless the contrary is shown; and until it is shown. If possession is taken by a wrongdoer, and severed from the title, (of which there is no evidence in this case,) then such naked possession, so acquired, may be defeated, either by entry of the owner, which is an act in pais, revesting the possession, and again uniting it with the right; or by ejectment, which is an act of law, to recover the possession with damages, &c. If a wrongdoer, after taking possession, dies in possession, and a descent is cast, this, under some circumstances, *changes the title to a right of entry, or rather makes an actual entry necessary to give effect to the title. There are many cases in which actual entry is necessary to reunite the title with the possession, and for these cases the law of Georgia was made. But it cannot apply to a case where the title and the possession have not been separated. That law requires two things: 1st. When the right is changed to a mere right of entry, or where an entry is indispensable to complete the title, then such entry must be within seven years from the accruing of such right of entry. But this does not apply to the case on the record. No disseisin, discontinuance, dissent, or adverse possession existed to make Shearman V. Irvine's Les see. *369 Shearman an actual entry necessary on the part of the plaintiff. Irvine's Les- The title and the possession were both in him. see. 2d. The statute gives remedy by ejectment within seven years after the cause of action accrued. In this case no cause of action accrued till the 10th of September, 1804, when the plaintiff's possession was disturbed. So long as it remained undisturbed he could not bring suit. MARSHALL, Ch. J. The error alleged is founded on a construction of the act of Georgia, which this court thinks is totally inadmissible. How such an opinion could have been entertained is unaccountable. There is no foundation for it. Judgment affirmed, with costs. *370 An appeal of the United *MORGAN v. CALLENDER. APPEAL from the district court of the United States lies from the for the territory of Orleans, in a suit in equity. district court That court was established by the act of congress, of 26th March, 1804, vol. 7. p. 117. s. 8. and has a jurisdiction similar to that given to the district court of the United States for the district of Kentucky. of States, for the to This Court was of opinion that an appeal lies from that court to this; but that in this case, the court below had not jurisdiction, because it did not appear that the parties were citizens of different states, nor aliens, &c. so as to give them a right to litigate in the courts of the United States. ALEXANDER v. THE BALTIMORE INSURANCE COMPANY. ERROR to the circuit court for the district of Mary. A policy up land. on a ship is an insurance of the ship for voyage, not an insu The Chief Justice, in delivering the opinion of the the court, stated the material facts, found by the special ver- rance dict, to be as follows, viz. on the ship and the voyage. The voyage, all events. the not The loss of This action was brought against the underwriters to underwriters recover the amount of a policy insuring the ship John undertake for the ability of and Henry, from Charleston to Port Republican, or one the ship to other port in the Bite of Leogane. On the 2d of Octo- perform ber, 1803, the John and Henry, while prosecuting her that she shall voyage, was seized by a French privateer, and carried perform it at into the port of Mole St. Nicholas, where the cargo *was * 371 taken by M. de Noailles, the French commandant, for the use of the garrison. On the same day the master of the voyage as the vessel received a written engagement from M. de to the cargo is Noailles to pay for the cargo in coffee, after which the not a loss of the voyage as vessel was unladen. The captain remained at the Mole to the ship. in expectation of receiving payment, until the 29th of time of the of October, when he sailed in the John and Henry for Cape fer to abanFrançois, with an order on that place for payment in cof-don, the ship fee. On the 4th of November she was seized by a Bri- sion of the tish squadron then blockading Cape François, and con- master, in good condidemned as prize. Cape François is not in the route to tion, and at Port Republican, nor to any port in the Bite of Leogane; full liberty to If at the be in posses On nor in the route to return from Mole St. Nicholas to the proceed the voyage, United States. The abandonment was made in Decem- the loss of the ber, on account of the capture by the French privateer. cargo will not The declaration claims the amount of the policy in con- owner of the sequence of that capture. The judgment of the court vessel to reco below was for the defendant. ver as for a total loss of The only question decided by this court was, whether the vessel. the plaintiff had a right to abandon and recover as for a total loss. Harper, for the plaintiff. It was settled by this court in Rhinelander's Case, at the last term, (ante, p. 29.) that a loss by capture is a total loss, unless the restoration be complete and without en V. Co. Alexander cumbrance. It must be a restoration of the vessel in Baltimore Ins. safety. There is a physical and a legal safety. A vessel may be restored in good order, and in safety, but under such circumstances that the party can make no use of her. It may be in a blockaded port, or in a place where mariners cannot be obtained to navigate the vessel; or where the party has no funds to provide a cargo, &c. In these cases he loses the beneficial use of his property, as much as if it were actually withholden from him by force. 372 If the ship or the voyage be lost, it is a total loss within the policy. Here the voyage was completely broken up; the object of the voyage, the speculation, was destroyed. The restoration ought to be a restoration of the voyage, a reinstatement of the enterprise, or it is not *a restoration which will prevent the loss from being total. In Cazalet v. St. Barbe, 1 T. R. 191. Judge Buller says, "If either the ship or the voyage be lost, that is a total loss." So in Mitchell v. Edie, 1 T. R. 615. he says "A total loss is of two sorts, one, where in fact the whole of the property perishes; the other, where the property exists, but the voyage is lost, or the expense of pursuing it exceeds the benefit arising from it." So in Goss v. Withers, 2 Burr. 696. Lord Mansfield, said, "The disability to pursue the voyage still continued. The master and mariners were prisoners. The charterparty was dissolved. The freight was lost." These he gives as reasons why it continued a total loss of the ship, notwithstanding the restoration. So in Hamilton v. Mendez, 2 Burr. 1209. he says, "It is absolutely lost, or not worth pursuing; if the salvage So in Miles v. Fletcher, Doug. 233. he says, |