amicable suit in chancery, against us, to which we will immediately file an answer, and obtain an order of reference to the master, to adjust and report the precise sum to which each legatee is entitled; which being done, we can proceed with safety to pay such sums as fast as the money comes to our hands.

In 1823, the legatees, in conformity with the above suggestion, filed a bill in the Circuit Court for the District of Columbia, which the executors immediately answered, admitting the existence of a balance to be distributed, and submitting to any decree which the court might think proper to pass. A special auditor was appointed to state the accounts of the parties. In 1825, the executors filed a cross-bill, alleging that all the parties were not in court, and praying that they might all be brought in. The proper proceedings were accordingly had as to the absentees, and in 1826 the Circuit Court passed a decree directing the sums to be paid to the several legatees, with the exception of the administratrix of Thomas Hammond and of Burdett Ashton. The auditor stated the account of Hammond upon two different principles; in one, giving him credit for $5,178.68, a distributive share, and charging him with $4.006.24, the gross amount of the proceeds of the mortgage sale; and bringing the executors in debt to Hammond upwards of $4,000; in the other, giving him credit for the same sum, but charging him with the balance of the debt due by Ashton, bringing him in debt to the executors upwards of $2,000. The Circuit Court adopted the latter, and decreed that the administratrix of Hammond should pay to the executors the sum of $2,158.56, with interest on $1,127.27, the principal sum due, from the 1st day of June, 1824.

From which decree, the administratrix appealed to this court.

Mr. Core for the appellant.
Mr. Jones for the appellees.

18*] *Mr.Justice DANIEL delivered the opinion of the court:

This is the case of an appeal from a decree of the Circuit Court of the United States for the District of Columbia.

This suit was originally of an amicable char acter, and was instituted at the request of the executors of General George Washington, by the legatees under his will, with a view to a definitive settlement of the accounts of the executors and a distribution of the estate. Subsequently to its institution, a cross-bill was filed by the executors for the purpose of covering some of the legatees, who had been omitted in the prior proceedings, and the two causes were prosecuted and decreed upon as one suit. The facts out of which the questions now presented for consideration have arisen, are substantially the following:

General Washington, after having disposed of a portion of his estate, devised all the res idue of his real and personal property to be soid by his executors, if it could not be equally and satisfactorily divided, and directed the proceeds to be divided into twenty-three equal shares, and distributed by shares and parts of shares, amongst twenty-nine persons named, and others not named, but designated by a col lective description. Amongst those having an

interest in the estate was Mildred Hammond. the wife of Thomas Hammond, in whose right the appellant claims one share of the twentythird part of the residue. After a previous distribution by the executors of $7,000, the amount arising from further sales, and remaining for distribution at the commencement of this suit, was near $120,000.

Several of the residuary legatees became purchasers at the sales made by the executors, some for more, others for less than their shares or parts of shares to which they were entitled. They gave securities for the amount of their purchases, as other purchasers would have been required to do, with an understanding that their several shares of the estate, when ascertained, should be credited against the sales respectively made to them.

Among those legatees who purchased to an amount exceeding their shares was Burdett Ashton, who was entitled to one third of one share in his own right, and to one other third of a share in right of a sister, together equal to two thirds of one twenty-third or full share of the residuum subject to distribution. This interest of Ashton was subsequently ascertained to be $3,425.20. *He purchased property [*19 in June, 1803, to the amount of $9,410.20, payable in three annual installments; and for securing this debt, with interest from the date, executed to the executors a mortgage on the 12th day of March, 1805.

Thomas Hammond (the husband of the legatee, Mildred Hammond) obtained from the executors an assignment of the mortgage from Ashton for the $9,410.20, and executed to them an obligation to account for any surplus which he might receive from Ashton's mortgage, beyond the share of Mildred Hammond, amounting to $5,179.50 after crediting Ashton with two thirds of a share to which he was entitled. The consideration for the assignment to Hammond is stated to be "one dollar in hand paid, but principally on account" of the share of his wife in the residue of General Washington's estate; and they bargain, sell, and assign to the said Hammond, his heirs, &c., all the right, title, interest, estate, claim, and demand of the executors to the within mentioned land and premises, and to the deed within mentioned. At the foot of the assignment is a memorandum "that the executors are not to be personally liable in any respect, or on any pretense, for or by reason of the above assignment," and further, that the within-named Burdett Ashton, his heirs, &c, shall have credit for his proportion, and for the proportion of his sister," in one share of the residuum of the estate, &c.

66

Within less than a month after receiving an assignment from the executors, Hammond assigned Ashton's mortgage to Smith, Buchanan and Calhoun, in consideration of a debt due from him to them. These last assignees filed their bill in the Supreme Court of Chancery in Virginia, to foreclose Ashton's mortgage, and to this bill the executors of Washington were made parties defendants. In their answer these executors admit the interests of Hammond and Ashton in the estate of their testator, the assignment by them to Hammond of Ashton's mortgage, and they ask nothing on their own account except this, that as certain funds of

the estate upon the basis of which Ashton's proportion had in part been calculated, might turn out to be unavailable, he, Ashton, might be required to indemnify the executors against such a contingency.

The settlement of Ashton's account having been by the Court of Chancery referred to the master, a large balance was reported as due 20*] *from Ashton on the mortgage, after allowing him a credit for his own and his sister's shares of a legatee's proportion. The court decreed a foreclosure of the mortgage, and a sale of the mortgaged premises to raise the balance due from Ashton. The sale made under the decree produced a sum considerably less than the amount of the debt from Ashton to the executors of Washington.

In the record in this cause are found accounts stated under orders of the Circuit Court between the executors of Washington and the distributees, under the will of their testator. In the account of Burdett Ashton, after crediting him with the proceeds of the mortgage sale, a balance is struck against him of $6.197.70. The account with Hammond is stated under two aspects; under the first, in which he is charged with the net proceeds only of Ashton's mortgage, he is a creditor, by the sum of $4,084.30; under the second, in which Hammond is charged with the entire balance due from Ashton, without regard to the actual proceeds of the mortgage, he is made a debtor. The Circuit Court, upon the hearing of this cause, being of the opinion that Hammond was absolutely bound to the executors of General Washington for whatever amount the mortgage debt of Ashton exceeded the share of Mrs. Hammond as a legatee, notwithstanding the failure of the mortgaged premises to produce the amount of the debt for which they were pledged; decreed, in conformity with the second statement of the master of Hammond's account (No. 11), that the administratrix of Hammond, out of the assets in her hands to be administered, should pay to the executors of George Washington the sum of $2,158.56, the balance appearing to be due to them by statement No. 11, with interest on $1,027.27, the principal sum due from the 1st day of June, 1824.

The basis of the above decree of the Circuit Court, and it is the foundation on which the argument for the appellees has been conducted; is the assumption that Hammond, in taking an assignment of Ashton's mortgage from the executors of Washington, undertook to guarantee the sufficiency of the mortgage subject to extinguish the amount for which that subject was pledged, and bound himself absolutely to be accountable for that entire sum.

It is difficult to reconcile such a course on 21*] the part of Hammond *with rules of common prudence or probability, nor can a claim to power in the executors to make such an exaction upon Hammond be viewed as consistent with fairness, or as called for by any obligation incumbent upon these executors. Hammond knew, when he took the assignment of Ashton's mortgage, that he was entitled to $5,179.50, admitted by the executors to be in their hands, or within their control. This is apparent, and is expressed both in the memorandum required by the executors to be appended to their assignment of Ashton's mortgage,

and in the separate instrument of indemnity executed to the executors by Hammond, upon his receiving that assignment. Under such circumstances, what rational inducement could exist on the part of Hammond for binding himself for the solvency of Ashton, or for substituting himself with the executors as a debtor in Ashton's place? The court can perceive no such inducement, nor can recognize any right in the executors to require anything of this kind, with a full knowledge, on their part, of Hammond's interest in the estate, and with an admitted fund in their hands for its satisfaction. They had no power to impair in any degree his claim upon them, nor to impose a mean for its payment, less certain and safe than the assets acknowledged by them to be adequate. It is laid down by the Circuit Court, and insisted on in the argument here, that the terms of the assignment to Hammond, as well as those of the instrument of indemnity given to the executors upon receiving that assignment, constitute an agreement that Hammond should be unconditionally bound for Ashton's debt. We have shown that this conclusion is in accordance neither with prudence nor probability, in the transactions of life-that it was not sustained by any duty, or even by fairness on the part of the executors; let us see how far it is warranted by the language of the instruments referred to as amounting to express and positive contract. In the written assignment to Hammond, this is the language used: "Have bargained, sold, assigned, &c., all the right, title, &c., in and to the within-mentioned land and premises, and the deed within mentioned," &c. Such terms were indispensable in that assignment, in order to give to Hammond control of the mortgage, either for its enforcement in his own behalf or for its transfer to others nothing is said, in terms, in this assignment, about the debt intended to be secured by the mortgage, [*22 neither in relation to any full equivalent for it, received by Hammond, which should bind him for it in toto, nor in relation to any entire and absolute transfer of it by the executors; and this, surely, was the place in which such terms, or conditions, if they really belonged to the contract, should have been expressed. The view here presented is fortified by the instrument of indemnity executed by Hammond to the executors contemporaneously with the assignment by the latter to him of Ashton's mortgage. This instrument of indemnity, after reciting that the executors had assigned, &c., a deed due them from Ashton, specifying no sum, no debt in numeris; after reciting, too, that Ashton was entitled to a portion of the assets, proceeds thus: "And whereas it is supposed that the amount of the said debt due from Burdett Ashton, after making the discounts aforesaid, to which he may be entitled, will exceed the said sum of $5,179.50, due to the said Thomas Hammond, as agreed; for which excess, the said Thomas Hammond is willing to give security; now, if the said Thomas Hammond shall well and truly pay, &c., such sum as the debt due from the said Burdett Ashton, shall exceed," &c. This portion of the instrument, beginning, "whereas it is supposed that the amount of the debt due from Ashton, after making the discounts to which he is entitled," &c. forcibly elucidates the meaning

and objects of the parties to that contract. The amount of Hammond's interest in the estate, the amount, too, of Ashton's debt to the executors, and of the portion claimed in his own right, and in right of his sister, were all known. With regard to these, then, there was no uncertainty. The supposition, therefore, expressed in this instrument could have no applicability to matters thus ascertained; that supposition could have been designed to apply only to the contingency of the mortgage subject producing a sum greater than the distributive share of Hammond in the estate; in which event, he was to be responsible for the excess, and for nothing beyond it. This provision cannot be correctly interpreted as binding Hammond, however inadequate the mortgage subject might prove to meet his share of the assets, to carry into the estate and pay to the executors a sum he never had received, and which, from the nature of things, he could not possibly receive; in other words, to pay to 23*] these executors his own *money. Upon taking an assignment of Ashton's mortgage, Hammond was bound for good faith and ordinary diligence in prosecuting it. These obligations appear to have been fulfilled, for the executors who were made parties to the suit for foreclosure take no exception to anything that had been done or omitted in reference to the security they had transferred.

The certificate of the secretary of the Spanish existence of a grant of land. Governor of Florida is prima facie evidence of the The Spanish Governor had authority to issue such a grant.

January, 1818, it is valid, although the survey was In the case of a grant made before the 24th of

not made until after that day, provided the survey was made before the exchange of flags.

It is not a good objection to such a grant that the metes and bounds were not set forth. THE facts in this case are fully set forth in the opinion of the court.

It was submitted by Mr. Legaré, the Attorney. General, without argument, on the usual objections assigned, pro forma, for error.

Mr. Justice CATRON delivered the opinion of the court:

This is an appeal from the decree of the Superior Court of East Florida, confirming eight thousand acres of land to Domingo Acosta, under the acts of Congress for the adjustment of land claims in Florida.

The claim is founded on an alleged petition of Acosta, dated May 2, 1816, and a decree of Governor Coppinger thereon, dated the 20th day of the same month and year. The petition (record 8) sets forth: That by the certificates which he presented, signed by the commandants of Fernandina, who had governed it successively since 1808, his Excellency would be informed that he had been a permanent resident of the said town, engaged all the while in commerce, and had served (in all that had offered itself) the wishes of the government for the good of the province; and that he had been particularly prompt with his person, his funds, and his influence, for the defense, the support, and the advancement of the town; and that he had at no time had any stipend, recompense or renumeration, of his expenses, supplies, and losses, and had refrained from importuning the government with solicitations. He therefore prayed for a grant, in property, of eight thou

This court doth accordingly reverse the decree of the Circuit Court, with costs, and remand this cause thereto, to be proceeded in conformably to the principles of this decision.

ORDER.

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 Alexandria, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed with costs, and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to proceed therein conformably to the opinion of

this court.

24*] *THE UNITED STATES, Appellants,

v.

DOMINGO ACOSTA, Appellee.

Spanish Governor of Florida-power to grant land-certificate evidence of grant-surveys made after treaty, valid as to grants made before. HOWARD 1. U. S., Book 11.

that were vacant, and desirous to avoid interference and dissensions with any persons, he further prayed his Excellency would be pleased to grant them at the places where the [*25 Surveyor-General might survey them as vacant

lands!

The decree (record 8) states, that "in virtue of the certificates which this party presents, and it being the will of the sovereign that the merits of his subjects should be rewarded, the lands solicited in this instance are granted, with special charge to the Surveyor-General to survey them to him without injury to third persons."

The originals of the petition and decree were not produced in evidence, neither are they to be found in the archives at St. Agustine. A certified copy, dated 24th June, 1816, under the hand of Thomas de Aguilar, secretary of the government, stated to be faithfully drawn from the original in his office, was alone offered, and was objected to on the part of the appellants.

The appellee also offered the following plats and certificates of survey, purporting to be made by George J. F. Clark, Surveyor-General of the province:

No. 1. Dated 12th January, 1818, for one thousand acres of land, on Bowlegs' old plantation, and situated northwardly and contig. 3

33

uous to the same Bowlegs' Prairie, westward of Payneston.

No. 2. Dated 15th January. 1818, for one thousand five hundred acres of land, in the hammock catled Jobbin's Hammock, south westwardly of the road called Ray's Trail, leading from the natural bridge of the Santa Fe, to the point of Alachua called Hogtown.

No. 3. Dated 14th February, 1818, for one thousand five hundred acres of land, northward of Dunn's Creek, running from Dunn's lake to the River St. John.

No. 4. Dated 20th January, 1820, for four thousand acres of land, on the west side of Indian River, and at a place called Flounder Creek.

After hearing testimony as to the manner in which muniments of title were kept in the archives at St. Augustine, the court made a decree confirming the four several tracts of land to the claimant; from which decree the present appeal is taken.

On the part of the United States it was contended that the said decree ought to be reversed on the following grounds:

1. That there is not sufficient evidence to show that Governor Coppinger ever made the alleged concession or grant.

26*] *2. That if Governor Coppinger made such a grant, it was made without authority.

3. That there is no description whatever in the said pretended grant, of the lands alleged to be granted, and no valid survey could be made so as to sever any lands from the public domain.

4. That there is no evidence of the surveys. The foregoing statement, offered on part of the United States, presents the facts of the case, and the objections to the decree below.

In answer to the first, that there is not sufficient evidence the grant was made, we refer to the case of Wiggins (14 Peters), which determines that the official certificates of the secretary Aguilar was prima facie proof of the existence of the original grant at the date when the copy was made, and of its contents.

In this case, Alveraz proves the certificate of the secretary genuine, and that he was in office at the date of the certificate. It was in proof that no original could be found in the proper

office where it should be on file. This was suf

ficient to let in a copy; and there being no proof to contradict, or impair the force of Aguilar's certificate, the court below properly held that the grant had been made by Govern or Coppinger.

To the second objection, it is sufficient to say -that the governor, as the king's deputy, was the sole judge of the merits on which the claim is founded, and had undoubted power to reward the merits of the grantee; so this court has held in many cases.

tee took title to the particular lands; because, up to this date, all grants made by the King of Spain, in whatever form, are recognized as valid by the article of the treaty. The difficulty in this case is, that two of the surveys were made after the 24th of January. 1818; and, did the grant take effect from the date of the surveys, then, by the stipulations of the 8th article. it would be void. This question was [*27 first presented in Sibbald's case (10 Peters, 321). It was thought by this court that the 8th article of the treaty operated on grants made by the governor after the 24th of January, 1818, but not on the subordinate acts of the surveyor in giving effect to the grant; and that surveys could be made at any time before the change of flags between this government and that of Spain. Still, had that officer failed to make the surveys, the grant would not be binding on this government. We followed the case of Sibbald in that of Clarke v. Atkinson, at the last term (16 Peters, 231). This construction was given to the 8th article of the treaty, in a spirit of liberality to this description of claimants, who could not be held justly responsible for the delays of the Surveyor-General; and because the incipient claim, by the governor's decree, was not cut off by the treaty. Surveyor General having executed the governor's decree, we are of opinion that the surveys made after the 24th of January, 1818, as well as those made before that date, are valid. That there are several surveys is no objection to their validity; the decree in this case obviously so contemplated.

The

4. It is objected, that no sufficient evidence is furnished by the record that the surveys were made. The cause was first submitted to the court below in 1834; then the two surveys last made were objected to and admitted by the court. The judge continued the cause on his own motion for further proofs, and it stood over on continuances until 1840, when the four surveys were read without objection. We think the proofs authorized the decree, and order that it be affirmed.

ORDER.

script of the record from the Superior Court for the District of East Florida, and was argued by counsel; ou consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Superior Court in this cause be, and the same is hereby affirmed, in all respects.

This cause came on to be heard on the tran

Cited 5 How., 475.

*JOSEPH W. WALSH, Administrator [*28 of WILLIAM RECTOR, Deceased,

v.

THE UNITED STATES.

the District of Missouri.

their own courts.

pilot.

The actual damage sustained by the party at the time and place of injury, and not probable profits at the port of destination, ought to be the measure of value in damages, in cases of collision as well as in cases of insurance.

By whose fault the accident happened, is a question of fact for the jury, to be decided by them upon the whole of the evidence.

THIS came up, by writ of error, from the Circuit Court of the United States, for the District of Columbia, and was argued at January Term, 1842. The court held it under a curia adrisare vult, and pronounced their decision at the present term.

The facts in the case were these:

The plaintiffs in error, who were also plaintiffs in the court below, were the owners of a 29*] vessel called the Francis Depau, *which was lying in the port of Liverpool, on the 15th of February, 1838, loaded and ready for sea. The bark Tasso, owned by the defendant, in coming out of the docks, ran foul of the Francis Depau and occasioned considerable damage. A suit was brought in consequence, and upon the trial the verdict of the jury was for the defendant. The following bills of exception

NOTE.-Collision-measure of damages for. The general rule is that in cases of collision, which is not willful, the owner of the injured vessel is entitled to receive as damages an amount which will place him in the situation in which he would have been but for the collision. Insurance is not to be deducted. The Rhode Island, Abb. Adm., 100; Williamson v. Barrett, 13 How., 101; Afg S. C., 4McLean, 589; The Baltimore, 8 Wall., New Eng. Mar. Ins. Co. v. Dunham, 3 Cliff., 332, Actual injuries only are to be compensated. Hypothetical or consequential damages are not considered. The Blossom, Olcott, 188; The Narragansett, Olcott, 246.

But the owner is entitled to recover his entire loss. The Narragansett, Olcott, 246; The New Jer7. Olcott, 444.

Where the vessel is lost by a collision the measure of damages is the full value of the vessel and of her freight. The Ann Caroline, 2 Wall., 538; The Rebecca, Blatchf. & H., 347; The New Jersey, Olcott, 444; The America, 11 Blatchf., 285.

What she would have brought at an ordinary sale

were taken by the plaintiffs, upon which the case was brought up.

Plaintiffs' first bill of exceptions:

In the progress of this cause, the plaintiffs having offered evidence to prove that on the 15th of February, 1838, the bark Tasso, the property of defendant, in coming out of the dock at Liverpool, on her way to sea in the prosecution of her homeward voyage to the United States, ran foul of and occasioned damage to the Francis Depau, a ship belonging to plaintiffs, and inflicted damage and injury upon the vessel of the said plaintiffs; and having further given evidence tending to prove that said collision was the result of unskillful management on the part of the Tasso.

of 37 Geo. III., ch. 78; 52 Geo. III., ch. 39, The defendant gave in evidence the statutes and 6 Geo. IV., ch. 125; and further proved that there was on board the Tasso, at the time of her moving from the dock and until after said collision, a regularly licensed pilot of said port of Liverpool; that the said vessel was under the management and direction of said pilot, and that the directions and orders of said pilot were followed and obeyed on board said vessel, the Tasso; that the master of the Tasso was not on board her during the time of her moving from said dock into the river; and that such absence of the master was usual and customary on such occasions.

The defendant, upon said evidence, prayed the court to instruct the jury, that by the true construction of the statutes of Great Britain (37 Geo. III., ch. 78; 52 Geo. III., ch. 39, and the 6 Geo. IV., ch. 125), produced on the trial,

the defendant is not responsible to the plaintiffs in this action for any damage occasioned by the default, negligence, or unskillfulness of the pilot proved to have been on board the Tasso; which opinion the court gave as prayed, to which the plaintiffs, by their counsel, excepted.

*Plaintiffs' second bill of exceptions: [*30

In the trial of this cause the plaintiffs produced a competent witness, and offered to prove that the ship of the plaintiff, mentioned in the declaration, at the time of the injury complained of, was loaded with salt and ready to sail for the Georgetown market, and that if the ship had then sailed she would in due course have arrived in Georgetown (as was intended when her lading was taken in) in due time for the sale of the cargo at the fishing season of the Potomac River, when there is a great demand

in market-not at forced sale. The Colorado, 1 Brown Adm., 411; McClosky v. The Achilles, 4 Law & Eq. Reporter, 676.

And it is proper to allow the cost of raising the sunken vessel to ascertain the extent of the loss. The Mary Eveline, 14 Blatchf., 497.

But where she is injured, the measure of damages is the sum necessary to restore the vessel to as good condition as she was at the time of the injury. The Catharine v. Dickinson, 17 How., 170; The Granite State, 3 Wall., 310, and cases cited supra.

Loss of use of the vessel while making repairs, the freight a vessel was earning less expenses, the damage done to a vessel in saving her, the salvage and other necessary expenses paid in rescuing the vessel from the perils of the collision, wharfage while repairing, cost of raising and clearing the vessel, loss of profits while it was sunk, demurrage for time vessel is repairing, the value of the use of the vessel while laid up for repairs, are all items of damage that have been allowed in addition to the actual cost of repairs. Williamson v. Barrett, 13 How., 101; Aff'g S. C., 4 McLean, 589; The Narra