deed, cannot be considered as the ground of constructive fraud. It makes no difference, we think, whether this agreement of the parties appear on the face of the conveyance, or, as in the present instance, in a lease made at the same time, or be otherwise proved, unless indeed it were omitted in the conveyance for the purpose of concealment, or with some other fraudulent design.' In Kent's Commentaries, 4 vol. 132, it is said that a mortgage of goods may be valid in certain cases without actual delivery. Authorities are referred to, and amongst others Wilde, J. in 2 Pick. 610, which is the case of Holmes et al. v. Crane, and 2 N. H. Rep. 8. The case of Butterfield v. Baker, 5 Pick. 522, and the case of Wait appellant, 7 Pick. 100, are both cases where owners of estates have, in leasing the same, endeavored to create a lien or mortgage in their favor upon the produce of the estates leased, as security for the rent which should become due under the lease. In both of those cases the lien was held to have been defeated by the rights of creditors having attached before possession of the produce had been taken by the lessor. See also Welsh v. Bekey, Executor of Hayden, 1 Penn. Rep. 57. ART. III.-LOSS OF WAGES IN CASE OF WRECK. The wreck of a ship is pledged by the marine law for the payment of wages, and the seamen's privilege is preferred to all other claims. But if they abandon the wreck the contract between them and the owners is dissolved, they lose their privilege against the ship and their claim for wages, and they are not restored, by the jus postliminii, on the salvage of the property by other persons. The policy of the law is to connect the right to wages with the safety of the ship. Property is derelict, in the maritime sense of the word, when it is abandoned without hope of recovery or the intention of returning to save it. The rights of the owner are not diverted by abandonment, but the finder becomes the legal possessor, and acquires a privilege against the property for his salvage, which takes precedence of all other liens The right to salvage may be forfeited by embezzlement and fraud. [This case was argued by C. and by Whitman for the owners. the opinion of the court.] S. Davis, for the petitioners, The facts are fully stated in court. WARE, J. This is a petition for wages against the proceeds of the wreck of the brig Elizabeth and Jane, which was ordered at a former term to be sold for the payment of salvage, and the proceeds of the sale to be brought into the registry. One half of the gross amount has been decreed to the salvors, and the seamen now claim their wages out of the surplus remaining in If wages are due, the claim may well be enforced in this proceeding. By the marine law the ship and even the wreck, as the old ordinances express it, is, to the last nail, pledged to the seamen for their wages. Their lien is preferred to all others, and the reason given is because it is their labor that has saved all. Consolate de la Mer, 341, 2, 3-986. Cleirac, Jurisdiction de la Marine, p. 351. art. 18. Abbott on Shipping, 538. 2 Rob. 232. 4 Cranch, 322. 195. 1 Valin, 703. Laws of Oleron, art. 2. 1 Peters A. R. The facts in the case are these: The seamen shipped in St. Domingo for a voyage to the United States, and the brig sailed with a cargo of mahogany about the first of January, 1823. Meeting with bad weather on the coast, she was driven about without being able to make a port until about eighty or ninety days after leaving St. Domingo, when she struck on a reef of rocks, was wrecked, and abandoned by the crew. The men suffered, not only from the severity of the weather, but from want of provisions, having been for a considerable part of the time on short allowance. The wreck was afterwards picked up and brought in by the schooner Merit, Capt. Sylvester. The seamen now claim wages out of the savings of the wreck, and an additional sum, under the statute, for the time they were on short allowance. No evidence was offered as to the latter claim, and I understood at the argument that it was abandoned. The question presented by the case, is, whether, after shipwreck and abandonment by the crew, wages are due, provided the wreck is saved by other persons independent of any agency on their part. On the general principles of the contract of hire, wages may, without doubt, be claimed. A mechanic, who is hired by the day or month to build a house, does not lose his wages because the building is accidentally destroyed before it is completed. But the contract of hire for marine service stands on reasons peculiar to itself. It is a principle of every maritime code that wages are dependent on the safe delivery of the thing. If ship and cargo are lost, wages are lost. It is the policy of the law to connect, by the strongest ties, the interest of the crew with the safety of property exposed to peculiar risks. In the event of shipwreck, so long as they remain attached to the ship, they keep alive their claims to wages; and if part is saved by their labor, though the authorities are not uniform on principle, it can hardly be denied that either full wages are due; or, at least, in proportion to what is saved, and according to the circumstances of the case, the seamen may claim an additional compensation in the nature of salvage. But when they abandon the wreck and leave it derelict, a very different case is presented. It may aid in coming to a correct decision of the question, to consider the situation and incidents of property thus abandoned. Property is derelict, in the maritime sense of the word, when it is abandoned without hope of recovery, or without an intention of returning. A temporary abandonment for the purpose of providing more effectual means of saving it does not constitute a derelict. For this purpose the abandonment must be final, without the intention of returning and resuming the possession. The property of the owner in the thing is not in this case devested. The law s ill considers him as the proprietor, and protects his interest. By the civil law, the purloining of goods shipwrecked or thrown overboard in a tempest, subjects the intermeddler to the action of theft. But any person who finds the goods may take possession of them; and it results from the marine law that he acquires the legal possession and a legal interest in the property, that is, a title to a reward for saving it, which he may enforce against the thing itself; or he may deliver it to the owner, and proceed in the admiralty by a libel in personam. 3 Rob. 215, The Hope. 4 Rob. 223, The Trelawney. The thing itself becomes bound to him for the salvage, and he may retain it until he obtains a satisfaction. This right of possession is necessarily exclusive of that of all other persons, because his interest in the thing takes priority of all other interests. The finder is bound to keep the goods with ordinary care at least and without fraud. The legal effect of plunderage or embezzlement on the part of the salvor, and on principle also, it would seem, of that gross negligence, negligentia proxima dolo, which the law holds as constructive fraud, is, that the salvor forfeits his claim to salvage, and the owner recovers his goods discharged of the lien. 2 Cranch, 240, The Blaireau. But it is from the salvor only that the owner can receive his goods, and to the owner only is the salvor accountable. The master and mariners having lost the possession, cannot resume it. These are familiar and well established principles of the marine law. It remains to be seen how they affect the claim of wages. The general rule founded on principles of policy, is, that wages are dependent on the successful termination of the voyage. Seamen have then their threefold remedy against the master, the owners, and the ship. Until that time their right to wages, and consequently their lien on the ship, are but inchoate and contingent. They become perfect on her safe arrival at the port of destination. Any misfortune, that destroys the voyage, puts an end to the claim for wages, or rather prevents its ever coming to maturity. Shipwreck followed by abandonment seems necessarily to involve this consequence. The contract is dissolved. The connexion of the crew with the ship is at an end. The property is derelict, and the finder acquires a possession and an interest, which the master and mariners cannot legally disturb. They have no longer a right to intermeddle with the goods. The rights of the owner continue, but if he does not appear and make his claim" within a year and a day, the title, subject to the salvor's lien, by the law of nations, as now understood, accrues to the sovereign. 1 Rob. 34, The Aquila. Valin. L. 4, Tit. 9. art. 27. Jacobsen's Sea Laws, B. 4, Ch. 4. I know of no principle of law which authorizes the carrier, master, or mariners, to intercept the goods between the salvor and the owner. On the contrary it seems to be the uniform language of jurists, that the goods come to the owner burthened only with salvage. It appears to be a necessary result from these principles, that the claim for wages is extinguished by shipwreck and abandonment, and that the benefit of the jus postliminii does not arise on the salvage of the goods by other persons. The question of freight was collaterally introduced into the argument in support of the claim for wages. It does not arise indeed in this case, the owner of the ship and cargo being the same. But it is contended that on the principles of the marine law, the ship being preserved in specie, and the lading brought into port in her, and received by the owner or insurer, freight must be considered as earned; and if so, that wages follow of course. In answer to this argument it may be said that the principles before stated apply with as much force to the question of freight as wages. The merchant receives his goods, but with the deduction of salvage, and they are delivered, not by the ship-owner, but by the salvor. The possession of the salvor deprives the carrier of the capacity of performing this essential part of the contract. On the whole it seems a fair deduction from these premises, that, by shipwreck with abandonment by the crew, the contract is totally dissolved. Such seems to me to be the legitimate inference from the acknowledged principles of the marine law; and so the law is stated by the learned editor of Abbott, p. 512. The authorities are not however so explicit on the subject as might have been expected, and perhaps not wholly reconcileable. In the case of Frothingham v. Prince, 3 Mass. R. 563, (and see Abbott, 498, note,) the cargo and freight were wholly lost, and the wreck only of the vessel saved. The court decided that full wages were due to the time of the shipwreck, though the amount was nearly equal to the whole value of the wreck saved. The report is short and confused, and it does not appear certain whether the salvage was effected by the crew or not. But from the circumstances stated it is rather to be presumed that it was. Taking the facts to be so, this case is supported in principle by the case of the Catharine Maria, decided by Judge Hopkinson, 2 Peters, 425, and the Cato, decided by Judge Peters, 1 Peters, 54. In both these cases the court lays stress on the services of the seamen in effecting the salvage; and in both a doubt seems to have existed whether full wages should be allowed, or only in proportion to what was saved. So long,' says Judge Hopkinson, as the duty of the mariners calls for their attention and services in the preservation of the ship and cargo or any part thereof, so long does their lien for wages inure, at least in proportion to the value of the property saved.' In the case of Luthridge v. Gray, Abbott, 340, which was originally brought in the court of admiralty in Scotland, and, after going through the Scottish courts, was finally decided by the House of Lords, |