Mr. Chief Justice Taney delivered the opin- | in question is described by abuttals with suffion of the court: cient precision. To the admission of all or any of this evidence, the defendant objected; but the objection was overruled by the court, and the evidence admitted; and this forms the first exception. This was an action of ejectment brought by Linthicum against Remington, in the Circuit Court for Washington County, in the District of Columbia, to recover part of lot No. 153, in Beatty & Hawkins's addition to Georgetown. It seems that a certain Zachariah M. Offutt, of the said county, was the owner of the property in question; and being indebted to Linthicum in the three several sums of money, actions were brought by the latter upon those claims, in the year 1836. Judgments were obtained, in due course of law; and executions against the property of the defendant were issued upon each of them, returnable to November Term, 1837, of the said court. Upon each of these writs of fieri facias the marshal seized the property which is now in question, and sold it at public sale, on the 13th of January, 1838; and at this sale Linthicum was the highest bidder, and became the purchaser. In 1835, before the institution of any of the 91*] above-mentioned *suits, Offutt, by deed duly executed, conveyed this property to James Remington, who in the same year conveyed it, in like manner, to William Remington, the plaintiff in error. Linthicum, having purchased of the marshal, as before mentioned, brought an ejectment, in February, 1838, against William Remington, who was the tenant in possession. The case came on for trial at March Term, 1839, and the judgment of the Circuit Court being in favor of the plaintiff, the defendant brought the writ of error which is now before us. Three bills of exception were taken at the trial, but the principal and most important question arises on the first. It appeared that the writs of fieri facias, hereinbefore mentioned, had not been returned to the court, but had remained in the possession of the marshal, and were produced by him at the trial, after the jury were sworn. The plaintiff offered these writs in evidence, together with the indorsements upon them, and also a schedule, in the usual form, of the property seized; and a particular account of its sale, as entered in a book kept by the clerk of the marshal for such purposes. It is, however, unnecessary to state the contents of those indorsements, and of the said account, because the opinion of this court does not turn upon them. In addition to these papers, the plaintiff offered in evidence a special return, of the said writs by the marshal, which return it was admitted, was not written until after the jury were impaneled; and the plaintiff accompanied this offer with a prayer to the court to authorize the marshal to make such written return. The return thus offered bears date April 19th, 1839, which is the term at which the ejectment was tried in the Circuit Court. It states that the fieri facias was levied on this property; that it was duly advertised and sold according to law; states the day of the sale; that Linthicum, being the highest bidder, became the purchaser; states the price at which he bought; that he had paid the purchase money, and fulfilled the conditions of the sale. This return refers to the schedule of the property seized, and returned with the writ; in which the lot The evidence stated in this exception was offered by Linthicum, in order to show a legal title in himself at the commencement of the suit; and undoubtedly such a title must be shown by the plaintiff in ejectment, and he cannot recover upon a title acquired pending the action. In deciding upon the admissibility of this evidence, for the purpose for which it was offered, we must of course be governed by the laws of Maryland, as far as we can gather them from the decisions of her courts; because the property in question is situated in Washington County, in this district, where the laws of Maryland, as they existed at the time jurisdiction was assumed by Congress, have been adopted. *In the case of Boring's Lessee v. Lem- [*92 mon, 5 Harr. & Johns. Rep. 225, the Court of Appeals of Maryland held that the sale of land by the sheriff, seized under a fieri facias, transferred the legal estate to the vendee, by operation of law; and that a deed from the sheriff was not necessary. The authority of this case is recognized in Barney's Lessee v. Patterson, 6 Harr. & Johns. Rep. 204, in which the court say, "it is not the return of the officer that gives title to purchaser, but the previous sale." But they then proceed to qualify in some measure the general expressions used in Boring's Lessee v. Lemmon, and declare that sheriff's sales of land are within the statute of frauds, and that some memorandum in writing is necessary to be made; and they recommend, for the safety of purchasers, that in addition to a deed from the officer, there should be a special return of the execution, particularly describing the premises, and setting out the name of the purchaser; either of which (the deed or the special return), the court say, "though not operating to pass the title, would be safe and competent evidence of the sale." The chief objection to the special return made by the marshal in this case, is, that it was not made before the suit was brought; and is not therefore,admissible to show title at the commencement of the suit. This objection rests upon the hypothesis that a deed from the marshal, or a special return upon the execution, was necessary to perfect the title of the vendee. But the Court of Appeals of Maryland, in the two cases above referred to, have decided that neither the return nor the deed pass the title: that they are nothing more than evidence of the sale, and that it is the sale which transfers the title by operation of law. It would seem to follow from these decisions that it cannot be material at what time this evidence is obtained. He cannot recover without it, because the sale being within the statute of frauds, it must be proved by written evidence. But whenever this evidence is obtained, it proves the previous sale by the officer; and as it is the sale that passes the title, the vendee must take it from the day of the sale. The evidence may be procured, therefore before or after suit brought, or before or after the jury are sworn in the trial of the ejectment. And the special return, of the marshal, in the case before us, made at the time of the trial, was admissible in evidence; for when thus made, it related back to the sale, and proved the title to be good from that day. The return is also sufficiently special, and complies with the statute of frauds. Neither is there any objection to the time at which this execution was actually returned to the court. It is true that it was made returnable, on the face of it, to November Term, 1837. But, if property, real or personal, is seized under a fieri facias, before the return day of the writ, the marshal may proceed to sell, at any time afterwards, without new process from the court. And as a special return on the fieri facias is one of the modes of proving the sale and securing the title of the purchaser, the marshal must be authorized to make the indorsement, after the regular return term, in cases 93*] *when the sale was made afterwards. In this case the executions had never been returned; they were still in the possession of the marshal; and the return at first indorsed on them, was still in his power; and if he believed it not correct, or not sufficiently particular, he had a right to change it. His return, when thus made, was under his oath of office; and he was equally responsible for it as if it had been made on the return day named in the writ itself. And as the executions in question had not before been returned to the court, we do not think that any leave was necessary in order to authorize the special indorsement made upon them. We have said nothing of the short returns indorsed, in the first instance, on these executions, nor of the accounts of sales contained in the marshal's private book of accounts; because the returns, as first written, did not name the purchaser, nor state the price paid for the property; and were, consequently, not of themselves such written evidence as would satisfy the statute of frauds. Nor can they be made better by reference to the memorandum of the sales in the private book accounts of the marshal, which certainly was not that kind of written evidence of the contract of which Linthicum could avail himself, in order to avoid the operation of the statute of frauds. We place the decision upon the special return before mentioned. The second exception may be disposed of in & few words. In order to supersede the necessity of tracing a title regularly from the State, the plaintiff read in evidence the deed from Offutt to James Remington and from James Remington to William Remington, hereinbefore mentioned; for the purpose of showing that the defendant in ejectment, William Remington, claimed title under the said Offutt. And then offered further to prove that the said deeds were fraudulent and void, as against him the plaintiff. This last-mentioned evidence was objected to by the defendant, but admitted by the court; and we think rightly admitted. The deeds were read by the plaintiffs to show that Remington claimed under Offutt, but not to show that he was a bona fide purchaser. And when he afterwards offered evidence to prove that these deeds were fraudulent, there was nothing in this offer inconsistent or incompatible with what he had before endeavored to es tablish by the production of these deeds. The third and last exception has not been much pressed here, and certainly in the manner in which the point is here stated, there is nothing for this court to act upon. The exception states generally that the plaintiff offered evidence tending to prove that the conveyance from Offutt to James Remington was fraudulent as against the plaintiff; and that the defendant offered evidence tending to prove the contrary: and then moved the court to instruct the jury that upon the evidence offered by the plaintiff, if believed by them, he was not entitled to recover; which instruction the court refused. No part of the evidence given by the plaintiff to establish the fraud, nor any given by the defendant to rebut it, is stated in the exception. It is impossible to say that the [*94 Circuit Court were in error, when we have none of the facts before us upon which their opinion was given. Indeed, from the manner in which the testimony is referred to in the exception, it would seem that the question was rather one of fact than of law; and that it was, therefore, properly left to the jury. An objection has also been taken to the declaration, upon the ground that the property sued for is not described in it with sufficient precision. It is described as "all that lot, piece, or parcel of land, lying, and being in Georgetown, aforesaid, being that part of lot number one hundred and fifty three, in Beatty & Hawkins's addition to Georgetown, aforesaid, which is bounded as follows, to wit"—and the declaration then proceeds to set out its abuttals. Undoubtedly, it has often been decided in Maryland, that a declaration for a part of a tract of land by its name only, or for part of a lot in a town, by its number only, without setting out the lines or boundaries, is too uncertain; and that an action cannot be supported upon such a declaration. But this case does not come within these decisions, because the vague and imperfect description objected to, is immediately followed in the declaration by a particular description by lines and boundaries. It is said, however, that this description is also too vague and uncertain, and that the property is not sufficiently identified by abuttals, set out in the declaration. We think otherwise. The description of the premises appears to us to be sufficient, and we perceive no objection on that score, which ought to have prevented the plaintiff in the court below from sustaining his action. The judgment of the Circuit Court is, therefore, affirmed. *PETER E. FREVALL, Appellant, [*95 FRANKLIN BACHE, Administrator of John Dabadie, Deceased, Appellee. Powers of Commissioners under treaty of indemnity with France of July 4, 1831. A claim for the sum awarded by the commissioners under the treaty of Indemnity with France or July 4th, 1831. The power and duties of the commissioners unde the treaty of indemnity with France, were the same as those which were exercised under the treaty | the Treasury, and the Treasurer of the United with Spain, by which Florida was ceded to the States may be enjoined from paying it. United States; as decided in the cases of Comegys V. Vasse, 1 Peters, 212, and Sheppard v. Taylor et To this bill the appellee put in his plea and al. 5 Peters, 710. There is a difference in the words answer, pleading the award of the commissionased in the treaty and act of Congress, when defining the powers of the Board of Commissioners; buters in bar of the complainant's bill, and also inthey mean the same thing. The rules by which the sisting, by way of answer, Dabadie owned the Board acting under the French Treaty is directed five sixteenths of the cargo in question, and had to govern itself in deciding the cases that come a valid claim, on that account, against the before it, and the manner in which it is constituted and organized, show the purposes for which it was French government; that he had never transcreated. It was established for the purpose of de- ferred or relinquished it to Curcier; and that ciding what claims were entitled to share in the his (Dabadie's) administrator was entitled to indemnity provided by the treaty; and they of course awarded the amount to such person as apreceive it out of the indemnity provided by peared from the papers before them to be the right treaty: and he exhibits as the evidence of his ful claimant. But there is nothing in the frame of interest in this cargo, an account, signed by the law establishing the Board, or in the manner of constituting and organizing it, which would lead to Andrew Curcier, in behalf of himself and the inference that larger powers were intended to Stephen Curcier, and dated June 16, 1810. be given than those conferred on the commissioners under the Florida Treaty. N appeal from the Circuit Court of the for County, trict of Columbia. This case was argued by Mr. Coxe for the appellant, and by Mr. Key for the appellee. A general replication was put in by the complainant: and the testimony of a witness residing at Marseilles, in France, was taken by agreement of parties. This witness, it appears, phia; and was engaged in commerce there from the year 1796 until 1827, when he returned to his own country, where he has ever since resided. He was intimate with Curcier and Dabadie; and he states in his testimony, that in the year 1818, at Philadelphia, he, as umpire and This case comes before this court upon anmutual friend, settled an account between them, appeal from the Circuit Court for the District of Columbia. Mr. Chief Justice Taney delivered the opin ion of the court: The controversy has arisen out of the ship ment of a cargo of cotton, indigo, and coffee, made in the fall of 1809, in the brig Spencer, from Philadelphia to St. Sebastians, or Port Passage. The vessel duly arrived, and discharged her cargo. She was afterwards seized, and the cargo sequestrated by the French government. In the following year, the vessel was liberated, and returned to the United States: but the cargo was never restored. in which all differences were finally adjusted; that the voyage of the Spencer to St. Sebastians, and the ownership of her cargo, were settled in that account; and that by the terms of the settlement, the claim on the French government for indemnity was afterwards to belong to Cur cier. The witness mentions circumstances which took place at the settlement, to show that his memory is firm and accurate in relation to it. He states that it was reduced to writing in the shape of an account current, as was customary; and that two accounts were made, exThe cargo of the Spencer thus sequestrated, actly the same in every particular, both origi was entitled to share in the indemnity provided nal, and one of them delivered to each of the by the treaty with France, of July 4, 1831. But parties. No account current, however, was exa dispute arose before the commissioners ap-hibited to the witness at the time of his examipointed under that treaty, as to the right to five sixteenths of the indemnity allowed for this cargo. The opposing claimants were the present appellant, who claimed for the whole of the cargo, and the appellee, who claimed for the said five sixteenths. The commissioners awarded in favor of the latter. The appellant therefore filed his bill against the appellee, in the Circuit Court for Washington County, in the District of Columbia; alleging, among other things, that a certain Andrew Curcier, then a resident merchant in Philadel96*] phia, was the owner of the Spencer and her cargo on the voyage in question; that the said seizure and sequestration gave him a valid claim against the French government; which he afterwards, for a valuable consideration, transferred to the claimant, who took it without notice of any other claim. And he charges also that if Dabadie, the appellee's intestate, ever had an interest in the cargo, it had been relinquished to Curcier by a settlement which took place between them in 1818, long before the assignment to the complainant. And he produces, as an exhibit, the account which, as he alleges, contains this renunciation: and he prays that the appellee may be enjoined from receiving the five sixteenths awarded to him by the commissioners, and that the Secretary of nation, and none therefore has been identified by him as the account current settled between the parties in 1818: and he states that he had not recently seen it, nor had any communication from any one in relation to its contents. Upon the hearing, the Circuit Court dissolved the injunction, and dismissed the bill, and the case is brought before this court by the appeal of the complainant. *Two questions have been presented [*97 for consideration here: 1. Is the decision of the commissioners appointed under the treaty with France conclusive upon the rights of the parties? 2. If the case is not concluded by the decision of the commissioners, is the appellant, upon the testimony in the record, entitled to relief? It has been ar Upon the first question the court have entertained no doubt. This case cannot, we think, be distinguished from the cases of Comegys v. Vasse, 1 Peters, 212, and Sheppard et al. v. Taylor et al. 5 Peters, 710. gued on the part of the appellee, that these cases were decided under the treaty with Spain; and that the language of that treaty, and of the act of Congress creating the board of commissioners under it, differs materially from the treaty and act of Congress under consideration, when defining the powers of the board. It is true, that there is a difference in the words used; but in our judgment, they mean the same thing. The rules by which the board is directed to govern itself in deciding the cases that come before it, and the manner in which it was constituted and organized, show the purposes for which it was created. It was established for the purpose of deciding what claims were entitled to share in the indemnity promised by the treaty; and they of course awarded the amount to such person, as appeared from the papers before them, to be the rightful claimant. But there is nothing in the frame of the law establishing this board, or in the manner of constituting and organizing it, that would lead us to infer that larger powers were intended to be given than those conferred upon the commissioners under the Spanish treaty. The plea therefore put in by the defendant in bar of the complainant's bill, cannot be sustained, and the case is fully open before this court upon its merits. Upon the second point there has been much more difficulty. It is very clear that Dabadie was the owner of five sixteenths of the cargo of the Spencer, upon the voyage in the fall of 1809, from Philadelphia to St. Sebastians, or Port Passage. This is abundantly proven by the account stated and signed by Andrew Curcier, for himself and Stephen Curcier, in June, 1810. For Dabadie, in this account, is charged with thirteen thousand seven hundred dollars and thirteen cents, for his five sixteenths of the cargo, and with three thousand nine hundred and ninety-three dollars and ninety-five cents for insurance upon it. He was therefore entitled to indemnity to the extent of his interest in the cargo, and had a valid and just claim for it against the French government. ceeds of her outward cargo; for such an inference would be contrary to the allegations of both the bill and the answer. And if it refers to a homeward cargo, there is no evidence to show that such a cargo was brought by the Spencer; nor, if brought, by what means or out of what funds it was procured. There is certainly nothing in the record to connect this item in any manner with the outward cargo, which was seized; nor to alter the rights of property in it. It does not answer the description which the witness gives of the account which he settled in 1818, as the umpire and mutual friend of the parties; and it is highly probable that the transaction of which he speaks, may, from the lapse of time, have been confounded with some subsequent voyage of the same vessel, out of which disputes may have arisen between the parties. He states that he has not seen the account, nor communicated with any person about it; and after twenty years have passed, it ought not to be a matter of surprise or reproach if some of the items of an account, and some of the circumstances connected with the settlement of it, were not accurately remembered. At all events, there is nothing in the account of 1818, or any account in the case, that would justify us in saying that the claim of Dabadie to the indemnity in question was transferred to Curcier, as charged in the bill. The decree of the Circuit Court is therefore affirmed. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed with costs. Plaintiffs, V. Has this interest been transferred to Curcier? The witness above mentioned deposed that it was relinquished to him, and the agreement reduced to writing in an account current, settled in June, 1818. If such an account had been produced by the plaintiff, it would decide the controversy in his favor. He does indeed pro- *JOHN PETERS, and John Peters, Jun., [*99 duce an account settled between the parties, with mutual acquittances, in June, 1818. But it is not such an account as the witness de- THE WARREN INSURANCE COMPANY, scribes. Neither of the sums with which Dabadie was debited in the account of 1810, for his share of the cargo, and for insurance, appear 98*] *in any way in this account of 1818. The acquittances therefore then executed do not apply to them. The apply only to claims which the parties may have had against one another; and not to claims which either of them had against the French government, or any other third party. There is an item in the account of 1818, which has been much relied on by the complainant, in which Dabadie is credited with five Bixteenths of the proceeds of the Spencer's cargo on this voyage, sold at six months' credit. But there is nothing to show that any part of the outward cargo was sold in France. On the contrary, the bill states that the whole cargo was sequestrated, and claims indemnity for the whole: and the answer admits the seizure of the whole, and claims indemnity for five sixteenths of the entire cargo. We cannot therefore suppose that this item refers to the pro Defendants. Marine Insurance-collision-proximate and remote cause-foreign laws. The Insurance. Insurance was made to the amount of eight thousand dollars on the ship Paragon, for among others, that of the perils of the sea. one year. The policy contained the usual risks, and assured claimed for a loss by collision with another vessel, without any fault of the master or crew of the Paragon, and also insisted on a general aver age and contribution. The Paragon was in part insured; and in November, 1836, in the year during which the policy was in operation, she sailed from Hamburgh, in ballast, for Gottenburgh, for a cargo of iron for the United States. While proceeding down the Elbe, with a pilot on board, she came in contact with a galliot, and sunk her. She lost her bowsprit, jib-boom, and anchor, and was otherwise damaged, and put into Cuxhaven, a port at the mouth of the Elbe, and in the jurisdiction of Hamburgh. The captain of the galliot libeled the Paragon, alleging that the loss of his vessel was caused by the carelessness or fault of those on board the Paragon. Upon the hearing of the cause, the court decided that the collision was not the result of the fault or carelessness of either side; and that therefore, according to the marine law of Hamburg, the loss was a general average loss, and to be borne equally by both parties; that is, that the Paragon | burgh, to procure a cargo of iron, for the Unit was to bear one half of the expense of her own reed States. pairs, and to pay one half of the value of the galllot; and that the galliot was to bear the loss of the half of her own value, and to pay one half of the repairs of the Paragon. The result of this decree was that the Paragon was to pay two thousand six hundred dollars, being one half of the value of the galliot (three thousand dollars) after deducting one half of her own repairs, being four hundred dollars. The owners of the Paragon, having no fund in Hamburgh, the captain was obliged to raise the money on bottomry. There being no cargo on board the Paragon, and no freight earned, the Paragon was obliged to bear the whole loss. Held, that the assured were entitled to recover. recognized in this court. A loss by collision, without any fault on either side, is a loss by the perils of the sea, within the protection of the policy of insurance. So far as the Injury and repairs done to the Paragon itself extend, the underwriters are liable for all damages. The rule that underwriters are liable only for losses arising from the proximate cause of the loss, and not for losses arising from a remote cause, not immediately connected with the peril, Is correct; when it is understood and applied in its true sense and as such, it has been repeatedly The law of insurance, as a practical science, does not indulge in niceties. It seeks to administer justice according to the fair interpretation of the intention of the parties; and deems that to be a loss within the policy which is a natural and necessary consequence of the peril insured against. If there be any commercial contract which more than any other requires the application of sound common sense and practical reasoning in the exposition of it, and in the uniformity of the application of rules to it, it is certainly a policy of in surance. It has been held by learned foreign writers on the law of insurance, that whenever the thing insured becomes by law directly chargeable with any expense, contribution or loss, in consequence of a particular peril: the law treats the peril, for all practical purposes, as the proximate cause of such expense, contribution or loss. This they hold, upon the general principles of law, applicable to the contract of insurance. In the opinion of the Supreme Court, this is the just sense and true Interpretation of the contract. In all foreign voyages, the underwriters, necessarily, have it in contemplation that the vessel insured must, or at least may be, subjected to the operation of the laws of the foreign ports which are visited. Those very laws may in some cases impose burdens, and in some cases give benefits, different from our laws; and yet there are cases under pollcies of insurance, where it is admitted the foreign law will govern the rights of the parties, and not the domestic law. Such is the known case of general average, settled in a foreign port according to the local law, although it may differ from our own law. a certificate of division from the Circuit Court of the United States for the District of Massachusetts. 100*] *This was a case on a policy of insurance, dated the 1st of April, 1836, whereby the defendants insured the plaintiffs, for whom it may concern, payable to them, eight thousand dollars on the ship Paragon, for the term of one year, commencing the risk on the 15th day of March, 1836, at noon, at a premium of five per cent. The declaration alleged a loss by collision with another vessel, without any fault of the master or crew of the Paragon, and also insisted on a general average and contri Whilst proceeding down the Elbe, with a pilot on board, she came in contact with a galliot called Frau Anna, and sunk her. The Paragon lost her bowsprit, jib-boom, and anchor, and sustained other damages, which obliged her to go into Cuxhaven, a port at the mouth of, the Elbe, and subject to the jurisdiction of Hamburgh for repairs. Whilst lying there, the captain of the galliot libeled the Paragon in the Marine Court, alleging that the loss of the vessel was caused by the carelessness or fault of those on board of Paragon. The ship was arrested; but subsequently released on security being given by the agent of the owners, to respond to such damages as should be awarded by the court. The captain of the Paragon, in his answer denied the charges of carelessness or fault on the part of those on board of his ship; and the court, after hearing the parties and their proof, decided that the collision was not the result of fault or carelessness on either side: and that therefore, according to article first, title eighth, of the Marine Law of Hamburgh, the loss was a general average loss, and to be borne equally by each party: that is, the Paragon was to bear one half of the expense of her own repairs, and to pay one half of the value of the galliot; and the galliot was to bear the loss of one half of her own value, and to pay one half of the expense of the repairs of the Paragon. In conformity with this decision, a general average statement was drawn up by Mr. Oldermann, the Despacheur of Hamburgh; an officer appointed by law, and by whom alone such statements can be prepared. In this statement are charged, first, the expenses of repairing the Paragon, after making the deduction of one third new for old, saving one of her anchors and chains, which was lost at the time of the collision; wages and provisions of the captain and the crew during the detention, and the expenses of surveys, protest, defending the suit, etc. amounting in all to about eight hundred dollars, and one half of which is charged to the Paragon, and one half to the galliot. *Second, are charged the value of the [*101 galliot, as by appraisal under an order of court, of her freight and cargo, the expenses of surveys, protest, prosecuting the suit, etc., amounting in all to about six thousand dollars, one half of which is to be charged to the Paragon. The statement concludes thus: "Which, according to the before-mentioned ordinance relating to insurance and average, is to be borne by ship, cargo and freight, as general average. The ship Paragon has to claim from the Frau Anna, for half the damages, say And the Frau Anna from the Paragon $400 . $3,000 one half the damages, say So that the Paragon must pay .$2,600 Which amount the Tribunal of Commerce decreed should be paid instanter. The owners of the Paragon, having no funds in Hamburgh, the captain was obliged to raise the money on bottomry. There being no cargo on board of the Paragon, and no freight earned, the ship has to bear the whole of the general average loss. Peters 14. |