Catlett and Keith v. Pacific Insurance Company.

the understanding of the underwriters, is very satisfactorily made out.

It is objected, that under this policy Thomas R. Keith might recover as one of the insured. But, I think, that the letter of instructions to Le Roy, Bayard, & Co. would always be an insuperable obstacle to any such recovery.

The next question is, whether the evidence shows a joint property in Catlett and James Keith, jr., conformably to the averment in the declaration. No circumstance has appeared from which it has been attempted to infer that their interests were separate, except the endorsements on the bill of lading. The bill of lading, on its face, the invoice, and all the papers which bear on this question, show that their interest was joint. And I consider the endorsements as made merely for the purpose of showing the extent of the interest of each owner, and not to contradict the bill of lading on its face.

But it is said they furnished their proportions separately: It is certain that each purchased a moiety separately; but this proves only that they were separate owners before the specie was shipped; but it proves no more. When it was put on board, their joint interest commenced. The object was not to purchase it jointly, but to ship it jointly; and a joint ownership, after it was shipped, is sufficient. Besides this, there is no evidence of separate interests. There were no marks on the bill of lading to show that the plaintiffs intended to be separate owners, or to enable any one to identify the property of each. I disregard entirely the marks on the manifest, contained in the Admiralty proceedings, as they have been entirely excluded, as not having been properly authenticated.

5. The only remaining objection that has been urged in support of this motion is, that on the breaking up of the voyage, at the Isle of France, the specie was delivered by the

Catlett and Keith v. Pacific Insurance Company.

Captain to Thomas R. Keith, one of the part owners, and by him invested in cotton. This, it is said, exonerates the underwriters from all responsibility.

The legal effect and operation of this act must depend upon the character in which Thomas R. Keith is to be considered as acting. If the view which I have taken of this case, under the last objection, be correct, he is not a party to this policy, and his interest in the cargo is in no manner covered or protected by it. And if the plaintiffs are to be bound or prejudiced by his acts, it must be by reason of their connexion as part owners. In all the cases which have been referred to, where the acts and interference of the owners, have been held to take away the right of abandonment, or to waive it, if made they were the assured. In such cases it is just and reasonable that the acceptance of the cargo, at any intermediate port, should discharge the underwriters. The master of the vessel, in whose possession the cargo is placed, is their agent, and they may revoke his authority, and take the cargo into their own hands. They are the only parties interested in the policy, and have the right to discharge it: But it by no means follows, that such authority is vested in one of the joint owners who has no interest in the policy.

It has been said that the joint owners were partners, and that the law applicable to the rights of partners, must govern this case; and that the act of one, in judgment of law, is the act of all. There is no doubt, but in partnership transactions, all the partners are bound by the acts of each which fall within the scope of the partnership. But I cannot consider this such a case. The rights and authority of partners, whatever they might have been, were suspended and modified by the special arrangement between them, under which this property was shipped. One of the joint owners, who had no interest in this policy, was constituted supercargo, and as such, became the agent of the plaintiffs, so far as their interest was

Catlett and Keith r. Pacific Insurance Company.

concerned. His rights and powers as partner, were suspended, and merged in his new character of supercargo; and he thereby parted with the possession and control of the property in transitu. His functions, as supercargo, did not commence until the arrival of the vessel at Canton. Upon the voyage the cargo was in the possession, and under the management and control of the master: He was the agent of the owners, and responsible to them under his bill of lading.

It cannot be pretended that Thomas R. Keith, as part owner, would have had a right to demand of the master this specie, and to have invested it in cotton, or any thing else, if the voyage had not been broken up. A delivery of it to him would not have exonerated the master from his liability on the bill of lading; and if not, I am unable to see why the breaking up of the voyage should give to Thomas R. Keith any greater rights. The captain, thereupon, became the agent of the underwriters, and bound to them for the faithful discharge of his duty as such; and they became responsible for his acts. And the same rule applies to the supercargo; he becomes the agent of the underwriters. And the assured are not bound by his acts where there is a right to abandon.

T

I do not, therefore, think that the plaintiffs' claim upon the underwriters is taken away by the acts of Thomas R. Keith, at the Isle of France.

I have thus briefly noticed the several grounds, which have been urged in support of the motion for a nonsuit, some of which are by no means free from difficulty; and I am not prepared to say, that I do not entertain doubts upon some of the questions that have been raised and discussed. From what has fallen from the bar, however, there is little reason to think that either party will be satisfied with the result of the trial here, but that the cause must ultimately go to the Supreme Court of the United States. Under such circum

The ship Robert Fulton.

stances, I deem it most prudent and discreet, and best calculated to advance the ends of justice with as little expense and delay as practicable, to proceed in the cause, and have the whole merits of the case disclosed. And this course I should think advisable, even if I entertained stronger doubts than I do upon the questions which I have been called upon to decide.

The motion for a nonsuit is accordingly overruled.

The defendants then proceeded with their defence, which was, that some of the stockholders of the Pacific Insurance Company were not citizens of New-York. Having proved that three stockholders resided in other states, the Court ordered the plaintiffs to be nonsuited.

THE SHIP ROBERT FULTON.

A vessel was libelled in the District Court for materials furnished. The claimants stated in their claim, that they had attached the vessel for materials furnished, in a State Court, under the acts of the state of 1798, and 1817, the day before the libel was filed, and prayed the advice and protection of the Court in regard to their priority, under the attachment, and if the vessel should be decreed to be sold, that they might be first paid. Held, that this was not a submission by the claimants to the jurisdiction of the Court, but that they were entitled to their election to proceed in the other Court. The Sheriff having attached the vessel, under the process of the State Court, it was held that the Marshal could have no authority to take it out of his possession, but should have so returned, to prevent a conflict of jurisdiction. The District Courts have a general Admiralty jurisdiction in suits by material men in rem. In cases of foreign ships, or ships of another state, the maritime law gives the lien. But in cases of domestic ships, no lien is implied; but if the local law gives a lien, it may be enforced in the District Courts.

The ship Robert Fulton.

When the District Courts and State Courts have a concurrent jurisdiction in rem, the right to maintain the jurisdiction attaches to that tribunal which first exercises it, and takes possession of the thing.

Difficulty as to the mode of obtaining satisfaction of a judgment under the laws of New-York, for materials furnished a vessel. The proper mode is by a sale of the vessel, under an execution against her, issued on the judgment.

THIS was an appeal from a decree of the District Court of the Southern District of New-York.

The ship Robert Fulton was attached in the Court below, on a libel, filed by Francis H. Nicoll and Henry W. Nicoll, the respondents, on the 11th day of May, 1826, praying for the condemnation and sale of the vessel, to satisfy their demand for materials furnished by them to the amount of 5,981 dollars 42 cents, in the necessary repairs of the vessel.

Twenty-seven distinct claims were put in for materials and labour furnished, in repairing the vessel, and amounting in the aggregate to 73,791 dollars 66 cents.

The claim of the appellants, William Wheelwright and Charles I. Johnson, stated, that they had furnished the vessel with materials to the amount of 2,967 dollars and upwards; and that the vessel was now in the custody of the Sheriff of the city and county of New-York, by virtue of a warrant of attachment, issued by the Honorable John T. Irving, first Judge of the Court of Common Pleas of the said city and county, on the 10th of May, 1826, under the act of the state of New-York, entitled "an act authorizing the arrest of ships or vessels for debts contracted by the master, owner, or consignee, for and on account of such ships or vessels in this state," on the petition of the claimants, stating their demand: That the warrant was executed and returned the same day, and previous to the filing the libel in this suit. The claimants, to the end that they might obtain relief in the