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selves on his promise only. It is possible that if he had possessed bank stock at the time of his bankruptcy, they might have been entitled to a preference in the disposition of that particular fund, as they had his written engagement to give it to them in security, or if he had transferred stock to them on the 20th of February, in pursuance of his engagement, it might possibly have been sustain: d. But the question, as it now presents itself, is of a different nature. The house and lot in dispute were never pledged in any manner whatever. There was no contract, engagement or promise, either written or verbal, relating to the house and lot, and of course, none that could bind them. These gentlemen did not lend their names with a reliance on this fund, but either upon his general credit, or upon the credit of another fund of which they might have supposed him possessed, and if they have any resort distinct from the other creditors, it must be to that fund to which they gave their credit. If he had covenanted to convey a house and lot, no specific execution of the contract could be decreed by ordering the transfer of stock; and as he covenanted to transfer stock, how can it be called an execution of the contract by conveying a house and lot? If they had taken his bond for the conveyance of a particular house and lot at a distant day, without knowing that he had a title to them, by so doing they would have trusted to his personal responsibility; and if it eventually turned out that he had no title, what court is there on earth, that would have decreed them a preference, upon this bond, over other creditors? It will hardly be contended that an engagement to
ansfer stock is entitled to a more specific execution, or to a greater indulgence than an obligation
to convey land.
But it is said, the title of the assignees can only relate to the act of bankruptcy, upon which the commission issued, and there can be no relation to any antecedent act. Without giving any opinion upon this point, it may nevertheless be answered, that we are not now trying the title of the assignees, but the title of the plaintiff; and the plaintiff must rely upon the strength of his own title, not on the weakness of his adver
sary's. If the assignees were the plaintiffs, then the first paragraph in the 10th section of the bankrupt law might be important, and it might be necessary to determine whether the adjudication of the commission, would relate to any act of bankruptcy, antecedent to that upon which the commission issued. But here the assignees are in possession, and are not bound to show any other title; if they can in any manner invalidate the deed from Brown to Mr. M. Mechin, they must proceed in their defence. What were the circumstances under which this deed was made?
It was executed on the day of the act of bankruptcy, upon which the commission issued, and the day after Brown had
ed with his friends to deny himself to the sheriff for the purpose of laying the foundation for the commission. If the jury should believe this fact, there can be no doubt but that the deed is void, and is of itself an act of bankruptcy, even although they should find, under the direction of the Court, that the denial to the sheriff was not an act of bankruptcy. Brown intended that it should be such; he advised with his friends as to the manner of denying himself, and had a witness present to prove
the fact. His own mistake in point of law or the mistake of his friends cannot alter the nature of his intentions, which were to commit an act, that he and they believed to be an act of bankruptcy. If therefore, the deed was made after he had formed this resolution, with a view to secure the Messrs. Pleasants or Mr. MMechin for their indorsements, and not even for a debt not then payable, and which they could not demand,'it must have been made in contemplation of bankruptcy, is therefore fraudulent, becomes an act of bankruptcy in itself, and is, of course, void. Under such circumstances, it cannot be considered a bona fide sale, and is not protected by the last paragraph in the 10th section of the act of Congress.
The case of Small v. Oudley and the other cases cited by the plaintiff's counsel were where the transfer was accompanied by possession of the goods and leasehold property, and this fact was relied on in all of them; nor does it appear in any of them that the acts were done after a determination formed
and expressed, to commit an act of bankruptcy. There is no pretence here that possession was delivered; for the institution of this suit is proof that the possession remained in Brown. I do not, however, consider the possession of real property important in this view; but the determination, to commit an act of bankruptcy on the 20th February, is fully proved to have been made on the 19th.
Mr. M'Mechin's object was not to secure Brown or his creditors, but he stepped in to secure his own particular friends, the Messrs. Pleasants, who were not the creditors of Brown, but who were apprehensive that they should suffer by their indorsements for him, and would thereby become creditors. He cannot therefore stand in a better situation than they would have been in, if the conveyance had been made to them.
Verdict for the defendants.
District Court of Maryland.
CONSTRUCTION OF MARITIME CONTRACTS.
Opinion delivered by the Honourable Judge Winchester, on the
Construction of Maritime Contracts. In this case the libellant claims wages for services rendered
in a voyage from Baltimore to St. Domingo, and back, and alleges that the voyage which he stipulated to perform was from Baltimore to Curracoa and back, and not to St. Domingo where the vessel did go contrary not only to the articles, but the express understanding of the parties, and the declaration of the libellant, that he would not ship on a voyage for St. Domingo. The articles exhibited specify a voyage to Curracoa and elsewhere; and under the latitude of the last general words the respondent contends that he was authorized to go to St. Domingo, without proceeding to Curracoa.
Taking the fact alleged to be true, that the voyage in view and actually prosecuted, was from its commencement for St. Domingo and not the port of Curracoa; the objection to pay the libellant's wages comes with a very ill
from the respondent, who shows and rests on his own deception and breach of faith as the foundation of his defence; and the Court would reluctantly discover any rule of law so imperative as to compel the sustenance of such a justification.
The act for the government and regulation of mariners contemplates two species of contract between owners and seamen. 1. For a voyage or voyages. 2. For a term or terms of time. The latter is undoubtedly the proper form of articles where the destination of a vessel cannot be specifically known, and where the vessel is employed on what is called a trading voyage, or is in search of freight. The first, to wit, that in which the voyage or voyages are specified, applies to designated ports, or particular kinds of voyages krown and understood to be governed in their extent and duration.
The term “voyage,” like the term “voyage assured,” is a technical phrase, and always imports a definite commencement and end. Nomen loci ubi navis oneratur et nomen loci quo navis tendit. The voyage from Baltimore to Curracoa is therefore a specified voyage, the labour and hazard of which is known to all parties; and for that voyage the agreement is such as the statute requires. But the terms “and elsewhere” are added to this specification of voyage, and it is insisted by the respondent's counsel, that under these words he was authorized not only to invert the order of voyage specified in the articles, but to go to any other port, as to St. Domingo.
If this construction was sound, the provisions of the act of Congress, which requires a specification of the voyage, when the hiring of seamen is not for a given time, become a dead letter; because there would be no terminus ad quem, which is essentially necessary to the legal sense of the term “ voyage." The terms “and elsewhere" must therefore be construed as subordinate to the voyage specified, and can only authorize the pursuing such a course as may be necessary to accomplish the principal voyage, or in other words, to import no more than the law would imply as incidental to the main contract. All arguments which rested on the defendant's right to construe these articles as giving him the alternative of several ports, must fail of course. Indeed there is nothing in the words of the contract which, independently of the ground before taken, would warrant, by rules of law or grammatical construction, such an interpretation. The term and is properly conjunctive; and is never construed to be disjunctive unless when coupled with a manifest intent apparent upon the writing itself, that it was used in such sense and for such purposes by the parties. The only intent manifested upon the face of the articles before the court, is such as is fairly to be understood by the words from Baltimore to Curracoa and elsewhere; and it would be doing very great violence to these words to invert the order of ports; for if the respondent is once exempt from the necessity of pro eeding to Curracoa, the specified voyage, there is nothing which would restrain his entering upon the most remote and