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INS. CO.

RICHASDs appointed assignees in pursuance of the choice of the & OTH:s creditors regularly convened for that purpose, and

brought the present action to the term next after the MARY'D. death of the assignee.

The plea is the statute of limitations. To this is filed a special replication, setting forth the above facts with a view to sustain an exception from the operation of the statute. The case comes up on a demurrer to the replication, and for the Defendant there were two points made at bar. 1st. That the action is not mainta:nable at all by the present Plaintiffs, because the bankrupt art makes no provision for the appointment of a new assignee upon the demise of the first. 2d, That the right of action vests in his personal representative and could be maintained by him—that the abatement by the death of the first assignee, was a voluntary abandonment of the suit, and put the case of the Plaintiffs out of the reason of the exceptions from the operation of the statute. In support of the action it was conteniled, that the former suit abated by the death of the first assignee--that the right did not vest in his executors, because it was a mere trust op agency--that the right of substituting the new assignees in the action is secured only in the case of removal by the creditors that this case is without the statute of limitations upon an equitable construction of that statute—and lastly, that this action is a good continuance of the former, by Journey's account

We are of opinion that the plea of the statute of Jimitations must be sustained. On the first point made by the Defendant, the Court would be understood to give no opinion. Being satisfied that the Plaintiff has not brought himself within any one of the exceptions which have been admitted to the statute of limitations, and feeling no inclination to multiply those exceptions, they dispose of the case upon the second ground alone. The cases which, though literally within the words of the statute, have been held to be without its spirit, are those only in which circumstances intervened, which rendered it impossible or inconsistent with known and established principles, that a cause of action could be revived by the renewal of the contract, or enforced by a suit at law within the time prescribed. The object

us.

of the law is to secure the individual from the machin- RICHARDS ations of dishonesty, when attempted under the advan- & OTHERS tages attendant upon lapse of time, loss of papers, and death of witnesses. But when cases present themselves MARY'D. in which no laches can be imputed to the Plaintiffs, but INS. co. great injustice would be done by applying to such cases the effect of the statute, the conclusion of reason and of the law is that such cases were not in the mind of the legislature when enacting that law. Such are the cases of a want of parties, Plaintiff or Defendant, whereby a temporary suspension of legal remedy takes place. But in no case of a voluntary abandonment of an action, has an exception to the statute of limitations been supported. And such we are of opinion is the case before

Whether it was or was not a case in which the bankrupt law authorizes the appointment of the present assignee we deem immaterial. The case is certainly not within the express letter of the statute, and it is only under its equitable, and perhaps its proper construction, that the appointment of the new assignees (the present Plaintiffs) can be supported. But the same equity which would support this appointment, would support the substitution of the new assignees for the former in the existing action. We are, however, of opinion, that the first assignee was not a mere naked agent or attorney for the creditors. The words of the bankrupt act. sect. 13, are that the debts assigned to him shall be vested in him, as if they had been contracts made with himself originally. Now one necessary incident to such a contract would bc, that the right of action would vest in his personal representative, and the act of Congress saves the suit from abatement by authorizing the substitution of the executor or administrators instead of the deceased Plaintiff. The same answer applies to the antiquated doctrine of continuance by Journey's account. The fact is, that the mode of continuing a suit in the name of the executor or administrator provided for by statute is a complete substitute for the continuance by Journey's account. even at common law, such a continuance or connexion of suit was allowed in no case of voluntary abandonment, and if the benefit of it was intended to be asserted, it was necessary to claim it in the form of renewing the action.

Judgment affirmed with costs.

1814.

CROWELL AND OTHERS v. M FADON.

Feb.

16th.

Absent.... WASHINGTON, J.

Under the ERROR to the Supreme Judicial Court of the Com11th sec. of the

monwealth of Massachusetts. Embargo act of 25th April, 1808, the col Icctor was jus

The case, as stated by DUVALL, J. in delivering the tified in detain- opinion of the Court, was as follows : ing a vessel by his honest opinion that there

An action of trover for 650 barrels of flour, of the was an inten- cargo of the schooner Union, was brought by John or evade the M Fadon against Joseph Otis and the Appellants, in the provisions of Court of Common Pleas for Suff:Ik county, in the Comthe Embargo monwealth of Massachusetts, where a trial was had and not necessary judgment rendered in favor of the Defendants. From for him to show this decision there was an appeal to the Supreme Judithat his suspicion was rea

cial Court of that state, in wbich the cause was again sonable. tried and a verdict and judgment rendered for the Plain-,

tiff for $3,716 30 and costs. Joseph Otis died whilst the suit was depending in the Supreme Judicial Court.

The following are the principal facts appearing on the record in this case : The schooner Union, Benjamin Hawes, commander, with a cargo of 650 barrels of flour and five tons of logwood shipped by John M.Fadon, of Baltimore, was cleared at that port for Machias, in Massachusetts, late in the month of April, in the year 1808. She had originally cleared for Passamaquoddy, on the 26th of April, before the collector had received notice of the act of the 25th of the same month which authorised him to detain the vessel : the destination was changed to Macbias, and a clearance obtained accordingly. But the original destination of the flour on board for Eastport, remained on the face of the manifest. The flour was shipped for account and risk of Josiah Dana, of Machias, and in his absence Jonathan Bartlett, of Eastport, or his assigns. The Union sailed from Baltimore the last of April and meeting with head winds, the commander put into Hymas, in the district of Barnstable. She was soon afterwards boarded by Joseph Crowell, one of the inspectors of the revenue in that district, who, on inspecting her papers, thought proper to

submit them to the examination of Joseph Otis the col- CROWELL lector. The collector, upon a consideration of the cir- & OTHERS cumstances before stated, was of opinion that it was the intention of the concerned to violate or evade the pro- MʻFADON. visions of the embargo laws, and therefore detained the vessel by virtue of the authority vested in him by the 6th and 11th sections of the act of the 25th of April, 1808, vol. 9, p. 68, until the decision of the president of the United States could be had thereon. The president, after due enquiry, approved and confirmed the conduct of the collector. The vessel remained in this situation until the 25th of July, when she was taken to Gage's wharf by Joseph Hawes, inspector of the port, and her cargo was landed and stored, with the assent of the agent of the owners, and the vessel discharged. On the #th of October following the collector offered to deliver the flour to the agent on payment of the expense of storing

The collector detained the Union under the 6th and 11th sections of the act of the 25th of April, 1808. The 6th section provides that no ship or vessel having any cargo whatever on board, shall, during the continuance of the act laying an embargo on all ships and vessels in the ports and harbors of the United States, be allowed to depart from any port of the United States for any other port or district of the United States adjacent to the territories, colonies or provinces of a foreign nation; nor shall any clearance be furnished to any ship or vessel bound as aforesaid without special permission of the president of the United States.” The 11th section provides that the collectors of the customs be and they are respectively authorised to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever in their opinion the intention is to violate or evade any of the provisions of the acts laying an embargo until the decision of the president of the Uniteel States be had thereupon.

With this evidence the cause came on to be heard in the Supreme Judicial Court of Massachusetts, and at the trial the judge charged and instructed the jury that, under the circumstances proved by the Defendant, neither the said collector or any person by his order, by virtue of the act aforesaid, had any right to intermeddle with or unlade the cargo of the said schooner, and that

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CROWELL such unlading was an unlawful act and a conversion of & OTHERS the cargo by the Defendants ; and with this direction the

jury found a verdict for the Plaintiff to the amount beforeM'FAvon. mentioned. To this opinion an exception was taken and

the cause was removed to this court by writ of error in pursuance of the 25th section of the act to establish the Judicial Courts of the United States.

PINKNEY, (late attorney general of the United States,) for the Plaintiff in Error,

Contended, that as the landing and storing the cargo was by consent of the agent of the owner, the only question was, whether the collector was justified, in detaining the vessel, by his honest suspicion that the intention was to violate or evade the provisions of the embar

go laws.

Upon this point he insisted that it was not incumbent on the collector to show that he had reasonable grounds of suspicion. It was sufficient if he satisfied the jury that, in his honest opinion, there was such an intention.

HARPER, contra,

Contended, that the question was not whether the detention was justifiable, but whether the unlading was justifiable. If the landing was by the consent of the agent of the owner, it was a consent forced upon him by the detention of the vessel.

But congress could not mean to subject the vessel to the arbitrary opinion of the collector. The detention was not lawful'unless the circumstances justified the suspicion. The collector must at least shew probable cause. The facts of the case did not authorise the suspicion.

PINKNEY, in reply.

The question is still the same. As the unlading was with the assent of the agent of the owner, it was a lawful act if the detention was lawful. The law did not mean to make the collector responsible for the sound exercise of his discretion. He was to have no guide but

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