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any duty. Now it must be evident that if payment by a stranger of the sum specified, either in a negotiable or vonegotiable instrument, would extinguish the obligation, the very pay ment which occasioned the assignment could be set up against the assignee; which is absurd and contradictory. But an assignment is no more than a cession or transfer to another of the rights vested in the creditor by the instrument. This assignment may be made either before action, pending it, or after judgment. And at what time soever made, the same rights and powers are transferred to the assignee, to wit, all that belong to the creditor. It makes no difference then, that the debt is res judicata. If the obligation of the instrument, while it is a private act, is not extinguished by the payment of a stranger, a fortiori will not the obligation of the judgment be so extinguished. How would the defendant avail himself of the exception? If the execution is about to be employed in the name of the creditor in the recess of the court, by an assignee pending the suit or after judgment, the defendant must supersede it till term time, and then move to quash it. But if on the plea of payment pending the action, he could not prove payment by a stranger, what reason can be assigned for a different rule on the motion to quash the execution ? No payment satisfies an obligation, whether of a writing or record, but a payment made on account of the obligation. But the sheriff in our case, does not pay on account of the defendant's obligation. Not the defendant's liability, but his own default ; not the defendant's obligation, but his own obligation to return the execution, is the ground of his condemnation. And it is this last obligation, not the defendant's, which he discharges by payınent of the money and costs mentioned in the execution. For having made the default, having, thereby, contracted this obligation, he is obliged to discharge it, though the judgment against the defendant be erroneous and reversable. Suppose after payment by the sheriff, the defendant bring error and reverse the judgment, who would be responsible to the sheriff? The creditor certainly, And yet if he paid on account, and in discharge, of the obligation of the debtor, his recourse would be against the debtor, for the payment would be regarded as having been made for the debtor, and as qui facit per alium facit per se, the debtor would be immediately liable to the sheriff and the creditor to the debtor. But it is evident that on reversal of the judgment, the debtor could not recover from the creditor the money paid by the sheriff. Because not having been paid by him immediately, nor for him, nor on account of bis obligation, and therefore not being his, it is not subject to repetition by him. Thurston v. Mills, 16 East, 274. Nor, for the same reason, could the sheriff sustain an action against the debtor. But it may be said, that the sheriff's obligation is an effect of which the debtor's obligation is the cause. And it must be admitted that so far as mere antecedence and subsequence determine the relation of cause and effect, there is some color for this observation. But that antecedent cannot be said to be a cause, which does not, proprio vigore produce the subsequent, which is styled the effect. But the debtor's obligation neither mediately por immediately produces either the sheriff's official character or his default in returning the execution; which indeed are the causes of his liability. The coming of the execution to the sheriff's hands irnposes on him a certain obligation, which he can discharge. Firstly, by returning the execution on or before the second day of the term to which it is returnable. Secondly, by paying the money and costs mentioned in the execution. But it is his own obligation which he discharges by performing one of these alternatives, not the debtor's. Suppose the sheriff come into court, on the return day of the execution, and report that, relying on the debtor's promise to pay the money, he had neglected to do execution, and bring the money into court in discharge of his obligation, could not a court of law, by its inherent power of controlling its judginents, order that the creditor's name should be used, even against his consent, to collect the money for the debtor? If our arguments show that payment of the money by the sheriff does not discharge the debtor's obligation, then the effect of the payment would be to entitle the sheriff to a cession of the creditor's rights. This is founded, says Pothier, upon the rule of equity, that as we are obliged to love all mankind, we are obliged to give them every thing which they have an interest in having, when we can do so, without detriment to ourselves. No. 520. Where a man is entitled to subrogation and requires it -- No. 280 — he may by French usage - enjoy it, though the creditor expressly refuses it, without the necessity of instituting any process to compel the
creditor to grant it: the law, in this case, supplies what the creditor ought to have done, and gives the debtor who requires it, a subrogation to all the rights and actions of the creditor. Here is a right then, founded on natural justice, which a court of law can enforce by a simple order, and yet we are told that the parties should be driven to the circuity of an action or bill, lest some undefined and undefinable technicality should be violated.' A court of equity, distinct from a court of law, never had been known, had the forms of proceeding in the latter, been fitted to give in every case a plain, adequate and complete remedy.
Should you, gentlemen, consider this letter consistent with the plan of the Jurist, and of value sufficient to merit insertion, it is at your service.
ART, II.-POINTS OF ADMIRALTY PRACTICE. Circuit Court of the United States. District of Massachu
setts, May Term, 1833. Foster, the Suffolk Insurance Co.) (John GARDNER, and others, and others, Claimants of Schooner vs. Libellants for Salvage, Appela Boston and Cargo, Appellants, ) (lees.
In a libel for salvage all the parties should be inserted and brought before the court.
Libels in admiralty, especially those for salvage, are usually too loosely framed.
They should state the subject matter with certainty and precision, with aperments admitting of distinot answers.
The answer should meet each material allegation of the libel with an admission, a denial, or defence.
No evidence is admissible except it be appropriate to some of the allegations in the libel or answer.
In admiralty proceedings a supplementary libel alleging new matter, and answer, may be filed after appeal, at the discretion of the court.
In case of a supplementary libel being filed after closing the testimony on the original libel in prize causes, the new testimony taken must be applicable merely to the new allegations; but in other causes this rule is much relaxed.
? This question has been discussed at the suggestion of the Hon. Judge Keith, of the seventh circuit, before whom it lately arose in the third circuit, where it was decided, with hesitation, negatively. 2 Eneye. Am. Art. Equity.
Since the act of March, 1803, ch. 93, in admiralty as well as equity cases, carried up to the Supreme Court by appeal, all the evidence goes with the case, and it must accordingly be in writing.
In a libel in rem against a vessel or cargo for salvage, the underwriters, not having accepted an abandonment, are not proper parties.
The delay to save the crew of a wrecked and sinking ship whose lives are in jeopardy, is justifiable and is not a deviation that discharges underwriters; but delay to save property is such a deviation.
Where the master and crew had left their vessel in a sinking condition and taken to the long boat, and were picked up by another vessel while yet in sight of the wreck, the vessel and cargo, thus left, are considered, in admiralty, as derelict.
On appeal in salvage cases, the court of appeal does not alter the amount of salvage upon slight grounds, or inconsiderable difference of opinion.
Right of salvage is forfeited by embezzlement on the part of the salvors. Embezzleinent in port is a forfeiture no less than at sea.
Embezzlement by the salvors after the property is put into the hands of the marshal is a forfeiture of salvage; and that whether the custody of the property be at the time given to the salvor's or not.
The rules of the common law as to the competency and incompetency of witnesses are adopted in the admiralty in the exercise of its jurisdiction as an instance court.
The case of salvage is an exception to the rule as to the incompetency of witnesses on account of interest. The salvors are, from necessity, witnesses as to facts occuring at the time of the salvage service; but only as to such facts.
The testimony of persons who are parties to an admiralty suit, ought to be taken under a special order of the court showing the cause, that the court may in its order limit the inquiries to matters within the exception to the rule that parties are not witnesses.
In a salvage suit in admiralty the salvors, being parties to the suit, are not competent witnesses as to facts occurring in port after the property is brought in.
The testimony of interested witnesses weighs little in opposition to that of those disinterested.
STORY J. This is a suit for salvage, brought before the District Court by an original proceeding in rem against the schooner Boston, of Eastport, and cargo. The original libellants were the master and owners of the schooner Magnolia, of Hallowell, in the State of Maine, asserting a claim as salvors. By a supplemental libel, the crew of the Magnolia, were brought before the court as salvors, as in strictness they ought to have been by the original libel, either by name or a description of their character. The libel, whether filed by the master, or owners, or both, should have been in behalf of themselves and
1 Salvage proceedings may as well be by process in personam as in rem. The Hope, 3 Rob, 215. The Trelawney, 3 Rob. 216, note.
the officers and crew of the saving ship. I take this opportunity of adding, that the manner in which libels of all sorts, and especially for salvage, are usually framed, is quite too loose and general. They should state the matter with all due certainty and precision (though not indeed with the nicety of common law proceedings) in distinct articles, each propounding, or as the admiralty phrase is, articulating, some material allegations, capable of a distinct answer and proof, is controverted; and the answer should accordingly reply to each article by a clear and exact admission or .denial, or defence to the matter of it. In this way we should arrive at that distinct knowledge of the real points of controversy, which is so desirable for the court, and to that just regard to the rules of admiralty pleadings, which is so essential to vindicate its equity, and facilitate its practice. But to return the case. A claim was interposed by Ezekiel Foster, of Eastport, as owner of the Boston, and by the Suffolk Insurance Company as underwriters on the vessel, and by other persons as claimants of the cargo. The claims admitted the salvage service ; and the question therefore was reduced at the hearing in the District Court to the mere consideration of the amount to be awarded to the salvors. The decree of the District Court awarded to them two fifths of the value of the schooner and cargo; one third of the salvage was given to the owners of the Magnolia ; the residue was divided into ten shares, of which the master was to receive five, the mate two, and the remaining three were distributed equally among the crew, consisting of three persons. No appeal was interposed by the libellants, either as to the amount of salvage, or as to the distribution ; and therefore, as to the latter there is now no controversy. But an appeal was interposed by the claimants generally, and of course this brings the amount of the salvage regularly in question before the court.
After the appeal, new facts, material to the defence of the claimants, and indeed constituting a new defence as to some of the salvors, having come to the knowledge of the claimants, it became necessary to open the cause, so as to let them in. Nothing is clearer, than that in the then posture of the allegations no proofs were admissible except to facts put in issue by them; for in all admiralty proceedings, the decree must be secundum allegata et probata. It is not sufficient that there