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Brown v. Gilman.

of the New England company, by the commissioners, is chargeable on the fund generally, not on the share of Mrs. Gilman particularly.

Some doubt was entertained, on the question, whether Mrs. Gilman should recover from the parties to this suit, her proportion of the money received by them, or her proportion, after deducting therefrom, the sum she would be entitled to receive from those members, who obtained an order from the commissioners, by which they received directly, and not through the agents of the company, the sums to which they were entitled, The majority of the *292] court directs me to say, that, in this respect also, the *decree is right, and that the company, or their agents, have the right to proceed against those members for what they have received beyond their just proportion of the whole sum awarded to the company.

Decree affirmed, with costs. (a)

(a) This subject of lien for unpaid purchase-money, is so fully discussed in the opinion of the court below in this case, that the following extract from that opinion, in Mr. Mason's reports, may be useful to the reader.

"The doctrine, that a lien exists on the land for the purchase-money, which lies at the foundation of the decision of the commissioners, as well as of the present defence, deserves a very deliberate consideration. It can hardly be doubted, that this doctrine was borrowed from the text of the civil law;' and though it may now be considered as settled, as between the vendor and the vendee, and all claiming under the latter, with notice of the non-payment of the purchase-money, yet its establishment may be referred to a comparatively recent period. Lord ELDON has given us an historical review of all the cases, in Mackreth v. Symmons, 15 Ves. 29, from which he deduces the following, inferences. 1st. That, generally speaking, there is such a lien. 2d. That in those general cases, in which there would be a lien, as between vendor and vendee, the vendor will have the lien against a third person, who had notice, that the money was not *293] paid. These two points, he adds, seem to be clearly settled; and the *same conclusion has been adopted by a very learned chancellor of our own country. Garson v. Green, 1 Johns. Ch. 308. The rule, however, is manifestly founded on a supposed conformity with the intentions of the parties, upon which the law raises an implied contract; and therefore, it is not inflexible, but ceases to act, where the circumstances of the case do not justify such a conclusion. What circumstances shall have such an effect, seems, indeed, to be matter of a good deal of delicacy and difficulty; and the difficulty is by no means lessened, by the subtle doubts and distinctions of recent authorties. It seems, indeed, to be established, that prima facie the purchase-money is a lien on the land; and it lies on the purchaser to show, that the vendor agreed to waive it (Hughes v. Kearney, 1 Sch. & Lef. 132; Mackreth v. Symmons, 15 Ves. 329; Garson v. Green, 1 Johns. Ch. 308); and a receipt for the purchase-money, indorsed upon the conveyance, is not sufficient to repel this presumption of law. But how far the taking a distinct security for the purchase-money shall be held to be a waiver of the implied lien, has been a vexed question.

"There is a pretty strong, if not decisive, current of authority, to lead us to the conclusion, that merely taking the bond, or note, or covenant, of the vendee himself, for

1 "Quod vendidi non aliter accipientis quam si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus emp tori sine ulla satisfactione." Dig. lib. 18, tit. 1, 1. 19. Domat, lib. 1, tit. 2, § 3, 1. 1. But this lien was lost, by the civil law, not only by taking a separate security from the purchaser, as a surety or pledge, &c., but also by giving a term of credit to him. For Justinian, after laying

down the rule in the Institutes thus, "Vendita vero res et traditæ, non aliter emptori acquiruntur, quam si is venditori pretium solverit, vel alio modio ei satisfecerit, veluti expromissore aut pignore dato," &c., adds, “sed si is qui vendidit fidem emptoris sequutus fuerit, dicendum est statim rem emptoris fieri." Inst. 1. 2, t. 1, de Rerum Divis. § 41. Pothier, De Vente, No. 322, 323, Pothier's Pandects, tom. 3, p. 107.

Brown v. Gilman.

the purchase-money, will not repel the lien; for it may be taken to countervail the receipt of the payment usually indorsed on the conveyance. (Hughes v. Kearney, 1 Sch. & Lef. 132; Nairn v. Prowse, 6 Ves. 752; Mackreth v. Symmons, 15 Ibid. 329; Blackburn v. Gregson, 1 Bro. C. C. 420; Garson v. Green, 1 Johns. Ch. 308; Gibbons v. Baddall, 2 Eq. Cas. Abr. 682; Coppin v. Coppin, 2'P. Wms. 291; Cases cited in Sugden on Vendors, ch. 12, p. 352, &c.) But where a distinct and independent security is taken, either of property, or of the responsibility of third persons, it certainly admits of a very different consideration. There, the rule may properly apply, that expressum facit cessare tacitum; and where the party has carved out his own security, the law will not create another in aid. This was manifestly the opinion of Sir WILLIAM GRANT in a recent case; where he asks, "If the security be totally distinct and independent, will it not then become a case of substitution for the *lien, instead [*294 of a credit given because of the lien?" And he then puts the case of a mortgage on another estate for the purchase-money, which he holds a discharge of the lien, and asserts, that the same rule must hold with regard to any other pledge for the purchase-money. Nairn v. Prowse, 6 Ves. 752. And the same doctrine was asserted in a very early case, where a mortgage was taken for a part only of the purchase-money, and a note for the residue. Bond v. Kent, 2 Vern. 281. Lord ELDON, with his characteristic inclination to doubt, has hesitated upon the extent of this doctrine. He seems to consider, that whether the taking of a distinct security will have the effect of waiving the implied lien, depends altogether upon the circumstances of each case, and that no rule can be laid down universally; and that, therefore, it is impossible for any purchaser to know, without the judgment of a court, in what cases a lien would, and in what cases it would not, exist. His language is, "If, on the other hand, a rule has prevailed (as it seems to me), that it is to depend, not upon the circumstance of taking a security, but upon the nature of the security, as amounting to evidence (as it is sometimes called), or to declaration plain, or manifest intention (the expression used on other occasions) of a purpose to rely not any longer upon the estate, but upon the personal credit of the individual; it is obvious, that, a purchaser taking a security, unless by evidence, manifest intention, or declaration plain, he shows his purpose, cannot know the situation in which he stands, without the judgment of a court, how far that security does contain the evidence, manifest intention, or declaration plain, upon that point." Mackreth v. Symmons, 15 Ves. 329, 342; Austin v. Halsey, 6 Ibid. 475.

"If, indeed, this be the state of the law upon this subject, it is reduced to a most distressing uncertainty. But on a careful examination of all the authorities, I do not find a single case, in which it has been held, if the vendor takes a personal collateral security, binding others as well as the vendee, as, for instance, a bond or note, with a surety or an indorser, or a collateral security by way of pledge or mortgage, thất under such circumstances, a lien exists on the land itself. The only case, *that [*295 looks that way is Elliot v. Edwards, 3 Bos. & Pul. 181; where, as Lord ELDON says, the point was not decided; and it was certainly a case depending upon its own peculiar circumstances, where the surety himself might seem to have stipulated for the lien, by requiring a covenant against an assignment of the premises, without the joint consent of himself and the vendor. Lord REDESDALE, too, has thrown out an intimation (Hughes v. Kearney, 1 Sch. & Lef. 132), that it must appear, that the vendor relied on it as security; and he puts the case, "Suppose, bills given as part of the purchase-money, and suppose them drawn on an insolvent house, shall the acceptance of such bills discharge the vendor's lien? They are taken, not as a security, but as a mode of payment." In my humble judgment, this is begging the whole question. If, upon the contract of purchase, the money is to be paid in cash, and bills of exchange are afterwards taken in payment, which turn out unproductive, there the receipt of the bills may be considered as a mere mode of payment. But if the original contract is, that the purchase-money shall be paid at a future day, and acceptances of third persons are to be taken for it, payable at such future day, or a bond, with surety, payable at such future day, I do not perceive how it is possible to assert, that the acceptances or bond are not relied on as security. It is sufficient, however, that the

Brown v. Gilman.

case was not then before his Lordship; and that he admits, that taking a distinct security would be a waivor of the lien. On the other hand, there are several cases in which it is laid down, that if other security be taken, the implied lien on the land is gone. To this effect certainly the case of Farwell o. Heelis, Ambl. 724, s. c. 2 Dick. 485, is an authority, however, it may, on its own circumstances, have been shaken; and the doctrine is explicitly asserted and acted upon in Nairn v. Prowse, 6 Ves. 752: see also, Bond v. Kent, 2 Vern. 881. In our own country, a very venerable judge of equity has reognised the same doctrine. He says, "the doctrine that the vendor of land, not taking a security, nor making a conveyance, retains a lien upon the property, is so well settled, as to be received as a maxim; even if he hath made a conveyance, *296] yet he may pursue the land in the possession of the vendee, or of a *purchaser with notice; but if he hath taken a security, or the vendee hath sold to a third person without notice, the lien is lost. Cole v. Scott, 2 Wash. 141. Looking to the principle, upon which the original doctrine of lien is established, I have no hesitation to declare, that taking the security of a third person for the purchase-money, ought to be held a complete waiver of any lien upon the land; and that, in a case standing upon such a fact, it would be very difficult to bring my mind to a different conclusion. At all events, it is prima facie evidence of a waiver, and the onus is on the vendor to prove by the most cogent and irresistible circumstances, that it ought not to have that effect. "Such was the result of my judgment upon an examination of the authorities, when a very recent case before the Master of the Rolls first came to my knowledge. I have perused it with great attention, and it has not, in any degree, shaken my opinion. The case there was, of acceptances of the vendee, and of his partner in trade, taken for the payment of the purchase-money. It was admitted, that there was no case of a security given by a third person, in which the lien had been held to exist. But the Master of the Rolls, without deciding what would be the effect of a security, properly so denominated, of a third person, held, in conformity to the opinion of Lord REDESDALE, that bills of exchange were merely a mode of payment, and not a security. This conclusion he drew from the nature of such bills, considering them as mere orders on the acceptor to pay the money of the drawer to the payee; and that the acceptor was to be considered, not as a surety for the debt of another, but as paying the debt out of the debtor's funds in his hands. Grant v. Mills, 2 Ves. & B. 306. With this conclusion of the Master of the Rolls, I confess myself not satisfied, and desire to reserve myself for the case, when it shall arise in judgment. It is founded on very artificial reasoning, and not always supported, in point of fact, by the practice of the commercial world. The distinction, however, on which it proceeds, admits, by a very strong implication, that the security of a third person would repel the lien. If, indeed, the point were new, there would be much reason to contend, that a distinct security *of the party himself *297] would extinguish the lien on the land, as it certainly does the lien upon personal chattels. (Cowell v. Simpson, 16 Ves. 276). In applying the doctrine to the facts of the present case, I confess, that I have no difficulty in pronouncing against the existence of a lien for the unpaid part of the purchase-money. The property was a large mass of unsettled and uncultivated lands, to which the Indian title was not as yet extinguished. It was, in the necessary contempl, tion of all parties, bought on speculation, to be sold out to sub-purchasers, and ultimately to settlers. The great objects of the speculation would be materially impaired and embarrassed, by any latent incumbrance, the nature and extent of which it might not always be easy to ascertain, and which might by a sub-division of the property, be apportioned upon an almost infinite number of purchasers. It is not supposable, that so obvious a consideration should not have been within the view of the parties; and viewing it, it is very difficult to suppose, they could mean to create such an incumbrance. A distinct and independent security was taken, by negotiable notes, payable at a future day. There is no pretence, that the notes were a mere mode of payment, for the indorsers were, by the theory of the law, and in fact, conditional sureties for the payment; and in this respect, the case is distinguishable from that of receiving bills of exchange, where, by the theory of the law, the acceptor is not a surety, but merely pays the money of the drawer in pursuance of

The Estrella.

his order. (Hughes v. Kearney, 1 Sch. & Lef. 182; Grant v. Mills, 2 Ves. & B. 306.). The securities themselves were, from their negotiable nature, capable of being turned immediately into cash, and in their transfer from hand to hand, they could never have been supposed to draw after them, in favor of the holder, a lien on the land for their payment. But I pass over these, and some other peculiar circumstances of this case, and put it upon the broad and general doctrine, that here was the security of a third person, taken as such, and that extinguished any implied lien for the purchase-money." (1 Mason 212.)1

*The ESTRELLA: HERNANDEZ, Claimant.'

Revolutionary government.-Neutrality.

[*298

The seal to the commission of a new government, not acknowledged by the government of the United States, cannot be permitted to prove itself; but the fact that the vessel cruising under such commission, is employed by such government, may be established by other evidence, without proving the seal.

Where the privateer, cruising under such a commission, was lost, subsequent to the capture in question, the previous existence of the commission on board, was allowed to be proved by parol evidence.

Where restitution of captured property is claimed, upon the ground, that the force of the cruiser making the capture has been augmented within the United States, by enlisting men, the burden of proving such enlistment is thrown upon the claimant; and that fact being proved by him, it is incumbent upon the captors to show, by proof, that the persons so enlisted were subjects or citizens of the prince or state under whose flag the crusier sails, transiently within the United States, in order to bring the case within the proviso of the 2d section of the act of June 5th, 1794, and of the act of the 20th April 1818.3

The right of adjudicating on all captures and questions of prize, exclusively belongs to the courts of the captors' country: but it is an exception to the general rule, that where the captured vessei is brought, or voluntarily comes, infra præsidia of a neutral power, that power has a right to inquire whether its own neutrality has been violated by the crusier which made the capture; and if such violation has been committed, is in duty bound, to restore to the original owner, property captured by cruisers illegally equipped in its ports.+

No part of the act of the 5th of June 1794, is repealed by the act of the 3d of March 1817; the act of 1794 remained in force, until the act of the 20th of April 1818, by which all the provisions respecting our neutral relations were embraced, and all former laws on the same subject were repealed.

In the absence of any act of congress on the subject, the courts of the United States would have authority, under the general law of *nations, to decree restitution of property captured [*299 in violation of their neutrality, under a commission issued within the United States, or under an armament, or augmentation of the armament, or crew, of the capturing vessel, within the same.

APPEAL from the District Court of Louisiana. This vessel and her cargo were libelled in the district court for the Louisiana district, by the alleged former Spanish owner.

The libel stated, that he was owner of the schooner and cargo, which sailed from Ilavana, for the coast of Africa, on the 23d of April 1817; that on the next day, she was lawlessly and piratically captured on the high seas, and held as prize, by an armed schooner, called the Constitution, of Venezuela, and forcibly brought within the jurisdiction of the United States, when she was re-captured by the United States ketch, the Surprise, and conducted to New Orleans. That the captors had no lawful commission from any sover:

1 And see Fish v. Howland, 1 Paige 20; Vail post, p. 497. v. Foster, 4 N. Y. 312.

2 See The Neustra Senora de la Curidad,

3 The Santissima Trinidad, 7 Wheat. 283.

4 The Gran Para, 7 Wheat. 471.

The Esti ella.

eign state to commit hostilities at sea; but that the said schooner and cargo, until their re-capture, were forcibly withheld from the libellant, in open violation and contempt of the law of nations. That if they had such commission, the same was issued, or delivered, within the waters and jurisdiction of the United States, with intent that the said vessel, the Constitution, should be employed in the service of Venezuela, to commit hostilities at sea against the subjects of the king of Spain, with whom the United States then were, and now are, at peace, in violation of their laws, and of the laws of nations. The libel further stated, that the Constitution had, previously to her cruising, been fitted out and *armed, or increased or augmented *800] in force, within the jurisdiction and waters of the United States; and also, that she had been manned by sundry citizens or residents of the United States, with the intent that she should be employed to commit hostilities, as aforesaid, in violation of the laws aforesaid. For these causes, the libellant prayed a restitution to him of the Estrella and cargo.

A claim was interposed by J. F. Lamoureux, prize-master of the Estrella, which stated that the Constitution was duly commissioned by the Republic of Venezuela, and authorized to capture all vessels belonging to its enemies, under which authority, she had captured the Estrella, which, with her cargo, belonged to the enemies of the said republic. That before he could receive his prize commission, the Constitution upset, in a gale, and her commission and papers, with the greater part of the crew, were lost. The claimant further represented, that as he was carrying the Estrella into port, to have her condemned before a court of competent jurisdiction, she was captured by the United States ketch Surprise, and conducted to New Orleans : and therefore, claimed, that the Estrella and cargo might be adjudged to be restored to him.

It appeared, from the transcript of the proceedings in this case, that the Estrella was also libelled on the part of the United States, although it was not stated for what cause such libel was filed, but the same was dismissed from which decree there was no appeal.

;

*3011 *It appeared in evidence, that the Constitution had a commission from the government of Venezuela, at the time the capture was made, which was issued and delivered at Carthagena; but that the same was lost by the sinking of the privateer, immediately after the capture.. There was some contradictory testimony as to her having increased her armament in the United States, and it was proved, that she had augmented the number of her crew, in the port of New Orleans.

On the libel. filed by the Spanish owner, decree was made, that the claim of Lamoureux, the prize-master, be dismissed, with costs, and that the Estrella and cargo be delivered up and restored to the libellant; from which sentence, the cause was brought, by appeal, to this court.

February 18th. C. J. Ingersoll, for the appellant and captor, argued, that the law of nations gave to the court of the captor's country the exclusive cognisance of questions of prizes made under its authority; and that the only exceptions to this general rule were to be found in the acts of congress for preserving our neutral relations. In the present case, there was no sufficient evidence, that the armament of the capturing vessel had been increased within the United States, so as to give our courts jurisdiction to restore the

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