TAYLOR, contra.

BANK OF

ALEXAN

DRLA

v.

No English authority can apply directly to this case. Potts remained in possession ten years after the deed to Lee, and until his insolvency and the execution of the HERBERT. deed to Herbert, when he delivered to Herbert the pos

session.

But the deed is void as to creditors as well as purchasers, and creditors are not affected by notice, although purchasers are. The fact that Herbert had notice does not appear; but if it did, he represents the creditors; and their rights are his. If there had been no deed to Herbert, the creditors might have obtained a decree in their own names to vacate the deed to Lee and compel a sale.

But if this cause depends upon the decisions under the bankrupt law, yet the assignee of a bankrupt represents the creditors, and can take advantage of defects which the bankrupt himself could not. Cooper 307. In the case of Taylor v. Wheeler, 2 Vern. 564, it does not appear that the creditors had a right to avail themselves of the defect in the mortgage. If Herbert represents the creditors, the fourth section of the statute of Virginia is conclusive. 1 P. P. Rev. Co. 157. If he does not represent the creditors, then all the provisions of the insolvent law are of no avail. If the deed cannot be set aside by a bill in the name of the trustee, the judgment creditors may file a bill in their own names and set it aside.

SWANN, in reply.

The assignee of a bankrupt also represents the creditors, but yet it has been decided (1 Atk. 94) that although creditors might vacate a deed, yet an assignee could not.

The case of Taylor v. Wheeler is very strong. The mortgage was void at law for want of a surrender of the copy-hold in due time, yet it was decreed that it should be made good against the assignee of the mortgagor, who, it was admitted, represented the creditors. But the chancellor said that the Complainant also was

DRIA

BANK OF a creditor, and had trusted to this particular fund, but ALEXAN- the others were general creditors; and upon that distinction his decree seems to be founded. The reason of บ. that case is precisely applicable to the present. The HERBERT. bank lent the money upon the credit of this very security.

7

February 16th....MARSHALL, Ch. J. delivered the opinion of the Court as follows:

In this case a bill was brought in the Circuit Court for the county of Alexandria, by William Herbert, jr. trustee for the creditors of John Potts an insolvent debtor, against the bank of Alexandria, to recover the proceeds of a tract of land, the property of Potts, which had been sold by consent, and the money deposited in

bank.

This land had been conveyed by Potts to the bank to secure the payment of a sum of money borrowed by him, but the deed of mortgage had not been recorded until eight months after its date had elapsed. The law of Virginia, which governs this case, declares all deeds of mortgage whatsoever, though good between the parties, to be void as to creditors and subsequent purchasers without notice, unless they be recorded within eight months from the date.

The question is whether this mortgage can be set up in favor of the bank against the trustee for the creditors.

The Circuit Court decreed in favor of the trustee, and from that decree there is an appeal to this Court.

For the Appellant it is contended that the trustee may be assimilated to the assignees of a bankrupt, and he has adduced some cases from the books showing that in England a deed declared to be void in law has been supported against the assignees in favor of the particular creditor who holds a lien upon it.

The resemblance between the trustee for the estate of an insolvent debtor in the district of Columbia and the assignees of a bankrupt is admitted; yet a clear distinction exists between the cases cited at bar and

that before the Court. In those cases the deed was de- BANK OF clared void without any view to creditors. In this case ALEXANthe deed is declared void for the particular benefit of DRIA creditors. To set up this deed against the creditors would be to defeat the very object for which the law HERBÉRT. was made.

The counsel for the Appellant is well apprised of this distinction, and though he claims for his clients the benefit of this deed against the trustee, he admits that -it could not be sustained against the creditors suing in their own names.

In reason there can be no difference between this suit, which asserts the right of the creditors in the mode prescribed by law, and an assertion of that right in their own names. Nor does the law distinguish between them. The cases cited did not turn on any distinction between the rights of the assignee and the creditors, but on the preference which ought to be given to him who has trusted on the credit of the particular fund over those who had trusted the general fund.

The decree is affirmed with costs.

ซ.

MARCARDIER
บ.

THE CHESAPEAKE INSURANCE COMPANY.

1814.

ERROR to the Circuit Court for the district of Where a tech Maryland.

nical total loss is sought to be maintained

The facts of this case were thus stated by STORY, J. upon the mere

in delivering the opinion of the Court.

ground of de terioration of the cargo, at an intermediate port, to a

This is an action on a policy of insurance, underwritten by the Defendants, on the 29th of October, 1806, moiety of its for $31,000, upon any kind of lawful goods on board value, all dete. the brig Betsey, whereof Alexander McDougal was then memorandum

rioration of

DIER ซ.

articles must be excluded

fore, in a car

abandonment

valid, unless the damage

on the non

a moiety of

MARCAR- master, on a voyage at and from New York to Nantes. M.Dougal was the general owner of the brig, and, on the 1st day of October, 1806, by a charter-party of afCHESA freightment made with the Plaintiff, granted, and to PEAKE freight let, to the Plaintiff, the said brig, excepting and INS. Co. reserving her cabin for the use of the master and mate and for accommodation of passengers, as therein mentioned, and so much room in the hold as might be necessary for the mariners, and storage of water, wood, provifrom the esti- sions, and cables, for the voyage from New York to mate. There- Nantes; and M Dougal, by the same instrument covego of a mixed nanted to man, victual, and navigate the brig at his character, no own charge during the voyage, and to receive on board for mere dete- any shipment of goods, not contraband, which the rioration in va- Plaintiff should tender at the side of the ship, or within Jue during the voyage, can be reach of her tackles, at New York, and to stow and secure the same, and proceed therewith to Nantes, and there discharge the same. The passengers on board memorandum the brig were to be at the joint expense of the parties, articles exceed and the passage money was to be equally divided bethe value of tween them. The other clauses in the charter party are the whole car- not material to be stated, except that the Plaintiff vego including nanted to pay the stipulated freight and demurrage. dum articles. The cargo, put on board by the Plaintiff, was of the inWhere the ge- voice value of $ 29,889, of which $7,439 were in memorandum articles. The brig sailed on the voyage, tains the pos- under the command of M Dougal, on the 9th of Novemmand & navi- ber, 1806, and during the voyage was compelled by gation of the stress of weather, and other accidents, to bear away for same, and con- the West Indies, and arrived at the port of St. Johns, in a cargo on Antigua, on the 22d day of December. There the masfreight for the ter made application to the vice admiralty for a survey, charter-party &c. and such proceedings were had upon his applicais to he consi- tion, that the cargo was landed, and by a decretal order dered as a of the Court, of the 31st of January, 1807, the same freightment was ordered to be sold for the benefit of all concerned, sounding in reserving the question as to freight. Under this decree, covenant, and the freighter the cargo was accordingly sold, and the sales completed is not clothed before the 28th of March, 1807; and the nett proceeds with the cha- of the whole of the Plaintiff's property amounted to responsibility $13,767. The nett proceeds of the memorandum arof ownership. ticles, included in the same sum, were $6,863 30. the general The whole proceeds were paid over to an agent apowner is also pointed by M'Dougal, and the freight for the whole voyage. Con- Voyage was allowed him by the admiralty, upon a re

the memoran

neral owner

of a ship re

session, com

tracts to carry

Voyage, the

mere af

racter or legal

In such case,

owner for the

DIER ซ.

port of commissioners, to whom the question was re- MARCAR ferred. The brig was repaired at Antigua, within a reasonable time, at the expense of one sixth only of her value, and capable of performing the voyage with the CHESAoriginal cargo; but M.Dougal voluntarily abandoned . PEAKE the voyage at Antigua, for his own emolument and ad- IN. sco, vantage. Of the cargo, 99 bags of coffee were spoiled

he be the mas

and thrown overboard, and the residue greatly da- sequently, if maged by the perils of the seas; and the whole cargo, ter of the vesincluding the memorandum articles, sustained a damage, sel, he is incapable of com during the voyage, exceeding a moiety of its original va- mitting barrn lue. On the 4th of Feb. 1807, and within a reasonable try. time after receiving information of the loss, the Plaintiff abandoned the whole cargo to the underwriters.

The declaration contained two counts, for a total loss; 1st. by the perils of the seas, and 2d. by barratry of the master. At the trial, the Court below, upon the facts and circumstances above stated, held that the Plaintiff was not entitled to recover, as for a total loss of the cargo insured, including the memorandum articles; and the cause came up to this Court, upon a bill of exceptions to that opinion.

HARPER, for the Plaintiff.

The great controversy between the parties in this case, turns on the question, whether the loss of the cargo now under consideration, was partial or total. It is contended, on the part of the Plaintiff, that it was a total loss.

1st. By the dangers of the seas.

20. By the barratry of the master.

By the dangers of the seas

1st. Because the voyage was broken up and lost by ́the deterioration of the cargo, to more than half of its value.

2d. Because there may be a total loss of memorandum articles, by the loss of the voyage; although the arti cles themselves remain in existence, and of some value. VOL. VIII. 6