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GRACIE 20. That the Lazaretto being substituted for the ship 0.
for the greater safety of the goods, their situation, as it MARINE respects all parties, while performing quarantine in the INS. co. Lazaretto, is precisely the same as if performing quar
antine in the ship. This argument is supposed to be much strengthened by the facts, that freight cannot be demanded until quarantine is performed, and that the lien for the freight continues after the landing of the goods.
3d. That a landing in safety must be such a landing as places the goods at the disposal of the owner or consignee.
However true it may be in general that when we speak of Leghorn, we speak of the city which bears that name, it does not follow that the same meaning is attached to the word when used in a policy. The insurance is " at and from Baltimore to Leghorn."
Now if, as is admitted, Baltimore means the port of Baltimore, it would seem not unreasonable to soppose that, in the same instrument, Leghorn means the port of Leghorn--the place which is the ultimate destination of the vessel on board which the goods are laden. The voyage is understood to be terminated when the vessel arrives at her port of destination, and has been moored there in safety for twenty-four hours.
But it will be conceded that the termination of the voyage as to the ship, does not necessarily terminate the risk on the goods. This risk may continue when the voyage as to the ship is ended. Its duration depends on the intention of the parties, and this intention must be found in their contract.
This brings us to consider the argument that the goods while performing quarantine in the Lazaretto remain at the risk of the insurer in like manner as if performing quarantine in the ship.
The words of the policy being “ beginning the adventure on the said lawful goods and mercbandizes from and immediately following the lading thereof on board of said vessel at Baltimore aforesaid, and so shall continue and indure until the said goods and merchandizes shall be safely landed at Leghorn aforesaid." The risk continues until the goods be safely landed, although the
voyage as to the ship, might be terminated previous to GRACIE their landing.
In ordinary cases, where the government does not in- INS. CO. terfere between the parties, this risk would continue until the goods should be landed in safety at the usual place, and at the disposal of the consignee. If it were usual to receive goods at the Lazaretto or at any other place on the shore of the port, it would be the duty of the owner or consignee to receive them there, and a landing at such place, it is admitted, would be a landing at Leghorn.
If on the other hand the goods while performing quarantine remained on board the ship, and could not be landed, it is not to be doubted that they would remain at the risk of the insurer. How then, it is askerl, can the substitution of the Lazaretto for the ship alter this risk? A substitution made, not by the act of the parties, but of the government of the country? A substitution which does not alter the rights of the parties since it leaves the lien of the master for his frieght unimpaired, and gives no power over the goods to the owner or consignee? A substitution beneficial to the insurer since it diminishes the risk on the goods ?
Whatever might be the effect of this reasoning if the establishment of the Lazaretto, and the laws of quarantine had been of so recent a date, as not to have been in the contemplation of the parties to the contract, as to which the court gives no opinion, this cause may well be decided upon
the usage found in this case, a usage of ancient date and of general notoriety. It existed and was known to exist when this contract was formed. When the parties stipulated that the adventure should continue till the ghods were landed in safety at Leghorn, they knew that the place of landing was the Lazaretto, and that the landing would be made under the direction and control of the local authority. This then must be considered as the landing contemplated in the policy. It is the landing which terminates the risk. Had the parties intended to continue the risk during the continuance of the goods in the Lazaretto, they would have inserted, in the policy, words manifesting that intention, Instead of terminating the adventure on the landing, a
GRACIE fact which they knew must take place at the Lazaretto
thirty days before the goods could be delivered to the MARINE owner or consignee, they would have continued it, till INS. co. th gods should be landed in safety and should perform
The Court is of opinion that under this policy the goods in the Lazaretto) were not at the risk of the underwriters and consequently that there is no error in the judgment of the Circuit Court.
This case differs from that against the Marine Insurance Company of Baltimore only in one particular. A part of the cargo remained on board the ship until the arrival of the French troops when the departure of the vessel was prohibited by the general and the ransom made.
This circumstance does not, in the opinion of the Court, vary the case; because, omitting all other considerations, the loss, within the risk, being on only a part of the cargo, is a partial loss, and is affected by the warranty against particular average loss.
This judgment is also to be affirmed with costs.
ERROR to the Circuit Court for the district of death of an assignee under Maryland, in an action of covenant on a policy of in
surance under seal. The Defendants pleaded the Ma- RICHARDS ryland statute of limitation of 12 years, 1715, ch. 23, & OTHERS $ 6, which enacts, “that no specialty whatsoever, shall
be good and pleadable, or admitted in evidence MARY'D. s against any person or persons of this province, after INS. CO. 6 the principal debtor and creditor have been both dead “ 12 years, or the debt or thing in action above 12 years the bankrupt “ standing,” with a saving of 5 years in cases of in-law of the U.
, fancy, &c.
right of action, for a debt due
to the bankThe replication to this plea stated in substance the rupt, vested in following facts, that the cause of action accrued on the the executor 1st of May, 1797. That M-Kean was declared a bank- of the assignee. rupt, and on the 19th of March, 1801, his estate was do not cause duly assigned to Thomas Allibone, who, on the 6th of himself to be
made party to October, 1806, instituted a suit on the policy and died a suit brought on the 1st of August, 1809, whereby the suit was abated. in the life That on the 11th of January, 1810, the Plaintiffs were, the 'name, of by the commissioners, appointed assiguees in pursuance the testator, of the choice of the creditors regularly convened for aid pending at that purpose, and brought the present action at the next to be considerterm after the death of Allibone, the former assignee. ed as a volunTo this replication there was a general demurrer.
tary abandonment of the ac
tion, so as to The judgment of the Court below, upon the demur
exclude the rer, was in favor of the Defendants; and the Plaintiffs the equity of brought their writ of error.
of limitations, HARPER, for the Plaintiffs in error, made four points. Quere, whe
missioners of 1. That an assignee, under the commission of bank- bankı upt had ruptcy, had no interest in the effects of the bankrupt point a second which could vest in his executor's or administrators, but assignee ir was a mere trustee or agent of the commissioners.
case of the
to the statute
ther the com
death of the first?
2. That the commissioners had power, upon the At common death of an assignee, to appoint another in his stead, could be reand so toties quoties.
newed by Journey's ac
counts, in a 3. That under the equity of the statute of limitations case of volanthe Plaintiffs had a right to bring a fresh suit upon the tary, abandonabatement of the first.
4. That there was a good continuance of the suit by Journey's accounts.
RICILARDS 1. The bankrupt law gave no extate to the assignee. & OTHERS He had no interest in the effects of the bankrupt; the
object of the law was merely to appoint a curator of the MARY'D. estate, with all authority like that of an administrator. INS. ce. It was a mere personal agency which terminated by the
death of the assignee. It was the intention of the law that this agent should have the confidence of the creditors; but that intention would be defeated if the executuror administrator of the assignee should become the agent. Vide Bankrupt law of the United States, vol. 5, 11. 50, $ 6, 7 and 8.
2. The commissioners, under the equity of the 6th and 8th sections, bad power to appoint a new assignee or assignees in case of the death of the assignee for the time being. Their power was like that of the ordinary in granting lett: r's of administration. No express authority is given to the ordinary to grant letters de bonis non, yet his authority to do it was never disputed. The intention of the bankrupt law was that there should always be an assignee until the estate should be settled. The general power to appoint, implies an authority to keep the office always full. The Plaintiffs, therefore, had power to inaintain this action.
3. The act of limitations does not apply to this case. 2 Sulk. 4 21. Cury and ux. *. Stephenson. The principle of that case was that the Plaintiffs bad done all in their power, and, therefore, the statute of limitation was not a bar. To make the statute apply there must be négligence on the part of the plaintiff, and injury to the Defendant by the delay. If an administrator commence the action within a year after the granting of letters of administration, the statute is no bar, unless it began to run in the life of the intestate. So in the case of an executor of an exccutor. Briller N. P. 150. Esp. N. P. 150. These cases all depend on the same general principle the equity of the statute. If there be no negligence on the part of the plaintiff and no injury to the Defendant, the case is within that equity.
4. This new action is a good continuation of the old suit by Journey's accounts. 6 Co. 10, Spencer's case. А new action by Journey's accounts may be had where the former action abates by the fault of the clerk, &c. but