The object of the treaty with Spain which ceded Florida to the
United
states, dated 2 May, 1819, was to invest the commissioners with
full power and authority to receive, examine, and decide the
amount and
validity of asserted claims upon Spain
for damages and injuries. Their decision, within the scope of this
authority, is conclusive and final, and is not reexaminable. The
parties must abide by it as the decree of a competent tribunal of
exclusive jurisdiction. A rejected claim cannot be brought again
under review in any judicial tribunal. But it does not naturally
follow that this authority extends to adjust all conflicting rights
of different citizens to the fund so awarded. The commissioners are
to look to the original claim for damages and injuries against
Spain itself, and it is wholly immaterial who is the legal or
equitable owner of the claim, provided he is an American
citizen.
After the validity and amount of the claim has been ascertained
by the award of the commissioners, the rights, of the claimant to
the fund which has passed into his hands and those of others are
left to the ordinary course of judicial proceedings in the
established courts of justice.
In general it may be affirmed that mere personal torts, which
die with the party and do not survive to his personal
representatives, are incapable of passing by assignment, and that
vested rights,
ad rem and
in re, possibilities,
coupled with an interest and claim growing out of and adhering to
property, may pass by assignment.
The law gives to the act of abandonment to underwriters, when
accepted, all the effects which the most accurately drawn
assignment would accomplish. The underwriter then stands in the
place of the insured, and becomes legally entitled to all that can
be recovered from the destruction.
It is clear that the right to compensation for damages and
injuries to which citizens of the United States were entitled and
which under the treaty with Spain were to be the subjects of
compensation passed by abandonment to the underwriters upon
property which had been seized or captured.
The right to indemnify for an unjust capture on the sovereign,
whether remediable in his own courts or by his own extraordinary
interposition or grants upon private petition by cession to the
account of the ultimate sufferer, and is afterwards assignable to
the person to whom it had been ceded.
It is not universally, though it may be ordinarily, the test of
a right that it may be enforced in a court of justice. Claims and
debts due by a sovereign are not commonly capable of being so
enforced. It does not follow that because an unjust sentence cannot
be reversed, that the party injured has lost all right to justice
or all claim upon principles of public law to remuneration.
The treaty with Spain recognized an existing right in the
aggrieved parties to compensation, and did not in the most remote
degree turn upon the notion of donation or gratuity. It was
demanded by our government as matter of right such as was granted
by Spain.
The right to compensation from Spain. held under abandonment
made to
Page 26 U. S. 194
underwriters and accepted by them, for damages and injuries and
which were to be satisfied under the treaty by the United States
passed to the assignees of the bankrupt, who held such rights by
the provisions of the bankrupt law of the United States passed
April 4, 1800.
The defendant in error instituted his suit against the
plaintiffs here, who were the surviving assignees under a
commission of bankruptcy issued against him under the Act of
Congress of the United States for establishing a uniform system of
bankruptcy throughout the United States, passed April 5, 1800.
In the circuit court, a judgment was entered in favor of the
defendant in error, the parties having agreed upon a case which, if
required by either, might be turned into a special verdict, subject
to the opinion of the circuit court:
The case was that Ambrose Vasse, previously to the year 1802,
was an underwriter on various vessels and cargoes, the property of
citizens of the United States, which were captured and carried into
ports of Spain and her dependencies, and abandonments were made
thereof to the said Vasse by the owners, and he paid the losses
arising therefrom prior to the year 1802.
The said Ambrose Vasse became embarrassed in his affairs, and
his creditors proceeded against him as a bankrupt under the Act of
Congress of the United States for establishing an uniform system of
bankruptcy throughout the United States. An assignment was made
accordingly to Jacob Shoemaker, who is since deceased, and the
defendants, Cornelius Comegys and Andrew Pettit, who proceeded to
take upon themselves the duties of assignees and have continued to
discharge the same. The certificate of discharge of the said
Ambrose Vasse bears date 28 May, 1802.
In the year 1824, the sum of $8,846.14 was received by the
defendants from the Treasury of the United States, being the sum
awarded by the commissioners sitting at Washington under the Treaty
of Amity, Settlement, and Limits between the United States of
America and his Catholic Majesty the King of Spain dated 22
February, 1819, on account of the captures and losses
aforesaid.
On 9 December, 1823, the said Ambrose Vasse filed a bill in
equity in the Circuit Court of the District of Columbia claiming
the sum awarded by the commissioners and a settlement of the
accounts of the assignees. This bill was intended to operate upon
the funds which were expected to come into the hands of the agent
of the assignees, prosecuting for them the claim before the
commissioners, but it was not
Page 26 U. S. 195
proceeded on, the said funds having been received by another
person.
The said Ambrose Vasse made a return of his effects to the
commissioners of bankruptcy. The claim upon Spain for spoliations
was not in the schedule, but claims upon France and Great Britain
were.
Page 26 U. S. 210
MR. JUSTICE STORY delivered the opinion of the Court.
This was an action of assumpsit brought by Ambrose Vasse in the
Circuit Court for the District of Pennsylvania to recover from the
plaintiffs in error (who were defendants in the court below) a
certain sum of money received by them under the following
circumstances:
Previous to the year 1802, Vasse was an underwriter on various
vessels and cargoes, the property of citizens of the United States,
which were captured and carried into the ports of Spain and her
dependencies, and abandonments were made thereof to Vasse by the
owners, and he paid the losses arising therefrom prior to the year
1802. Vasse became embarrassed in his affairs, and his creditors
proceeded against him as a bankrupt under the Act of Congress of 4
April, 1800, ch. 19. An assignment was made accordingly to Jacob
Shoemaker (who is deceased), and the defendants, Comegys and
Pettit, who proceeded to take upon themselves the duties of
assignees and have ever since continued to perform the same. Vasse
was discharged under the commission, and his certificate of
discharge bears date 28 May, 1802. In the year 1824, the sum of
$8,846.14 was received by the defendants from the Treasury of the
United States, being the sum awarded by the commissioners sitting
at Washington
Page 26 U. S. 211
under the treaty will Spain which ceded Florida to the United
States, dated 22 February, 1819, on account of the captures and
losses aforesaid. On 9 December, 1823, Vasse filed a bill in equity
in the Circuit Court of the District of Columbia; which is in the
case, upon which it seems no final proceedings were had on the
merits. Under the commission of bankruptcy, Vasse made a return of
his effects to the commissioner, which is in the case.
Upon these facts, a general verdict was found for the plaintiff
Vasse for the sum of $8,846.14, subject to the opinion of the
court, with liberty for either party to turn the same into a
special verdict, and the circuit court gave judgment upon the facts
in favor of the original defendant. The present is a writ of error
brought for the purpose of ascertaining the correctness of that
judgment.
Three questions have been argued at the bar.
1. Whether the award of the commissioners under the treaty with
Spain directing the money to be paid to the defendants as assignees
of Vasse (which is assumed to be the true state of the fact) is
conclusive upon the rights of Vasse, so as to prevent his recovery
in the present action.
2. If not, whether the abandonment of the vessels and cargoes to
him as underwriter, by the owners and his payment of the losses
entitled him to the compensation awarded, independent of his
bankruptcy.
3. If so, then whether his right and title to the compensation
passed by the assignment of the commissioners of bankruptcy to the
defendants as his assignees by the true intent and terms of the
Bankrupt act of 1800, ch. 19.
1. As to the first point:
1. The treaty with Spain of 22 February, 1819, was ratified on
13 February, 1821, by the government of the United States. In the
9th article it provides that the high contracting parties
"reciprocally renounce all claims for damages or injuries, which
they themselves, as well as their respective citizens and subjects
may have suffered, until the time of signing this treaty,"
and then proceeds to enumerate in separate clauses the injuries
to which the renunciation extends.
The 11th article provides that the United States, exonerating
Spain from all demands in future on account of the claims of their
citizens to which the renunciations herein contained extend, and
considering them entirely cancelled, undertakes to make
satisfaction for the same to an amount not exceeding $5,000,000. To
ascertain the full amount and validity of these claims, a
commission, to consist of three commissioners, &c., shall be
appointed, &c., and within the space of three years from the
time of their first meeting, shall
"receive, examine, and
decide upon the amount and validity of all claims
Page 26 U. S. 212
included within the descriptions above mentioned." The remaining
part of the article is not material to be mentioned.
It has been justly remarked in the opinion of the learned judge
who decided this cause in the circuit court that it does not appear
from the statement of facts who were the persons who presented or
litigated the claim before the Board of commissioners, nor whether
Vasse himself was before the board, nor who were the parties to
whom or for whose benefit the award was made. We do not think that
the fact is material upon the view which we take of the authority
and duties of the commissioners. The object of the treaty was to
invest the commissioners with full power and authority to receive,
examine, and decide upon the
amount and
validity
of the asserted claims upon Spain for damages and injuries. Their
decision, within the scope of this authority, is conclusive and
final. If they pronounce the claim valid or invalid, if they
ascertain the amount, their award in the premises is not
reexaminable. The parties must abide by it as the decree of a
competent tribunal of exclusive jurisdiction. A rejected claim
cannot be brought again under review in any judicial tribunal; an
amount once fixed is a final ascertainment of the damages or
injury.
This is the obvious purport of the language of the treaty. But
it does not necessarily or naturally follow that this authority, so
delegated, includes the authority to adjust all conflicting rights
of different citizens to the fund so awarded. The commissioners are
to look to the original claim for damages and injuries against
Spain itself, and it is wholly immaterial for this purpose upon
whom it may in the intermediate time have devolved or who was the
original legal, as contradistinguished from the equitable owner,
provided he was an American citizen. If the claim was to be allowed
as against Spain, the present ownership of it, whether in assignees
or personal representatives or
bona fide purchasers, was
not necessary to be ascertained in order to exercise their
functions in the fullest manner. Nor could they be presumed to
possess the means of exercising such a broader jurisdiction, with
due justice and effect. They had no authority to compel parties
asserting conflicting interests to appear and litigate before them,
nor to summon witnesses to establish or repel such interests, and
under such circumstances it cannot be presumed that it was the
intention of either government to clothe them with an authority so
summary and conclusive, with means so little adapted to the
attainment of the ends of a substantial justice. The validity and
amount of the claim being once ascertained by their award, the fund
might well be permitted to pass into the hands of any claimant; and
his own rights, as well as those of all others, who asserted a
title to the fund, be left to the ordinary course
Page 26 U. S. 213
of judicial proceedings in the established courts, where redress
could be administered according to the nature and extent of the
rights or equities of all the parties. We are therefore of opinion
that the award of the commissioners, in whatever form made,
presents no bar to the action if the plaintiff is entitled to the
money awarded by the commissioners. The case of
Campbell v.
Mullett, 2 Swanston 551, is distinguishable. The claim in that
case had been laid before the commissioners and rejected by them on
the ground that the party was alien enemy, and if so he certainly
did not come into the purview of the treaty. It was not pretended
that the party had any title to the indemnity unless it could be
deemed partnership property, and as a partner he was entitled to
share in it. The court considered that it was not partnership
property in which he had a title; that his claim to any portion of
it had been rejected upon the ground that such claim was not within
the treaty; and the indemnity had been granted to the other
partners for their shares only of the joint property, and they took
no more than their own shares. The court then proceeded upon the
ground that there neither was an original nor a derivative title to
the indemnity in the party now seeking to set it up. If an
assignment had been shown from them to him of their own interest in
the claim or award before or after it was made, the case might have
admitted of a very different consideration. Whatever therefore
might be the authority of that case upon general principles, upon
which it is unnecessary to pass any opinion, it is inapplicable to
the present.
2. The next question is not noticed in the opinion of the
circuit court, turns upon the nature and effect of an abandonment
for a total loss to the underwriters. Much argument has been
employed and many authorities introduced to prove what rights and
interests, possibilities and expectancies, may or may not pass by
assignment; we do not think it necessary to review these
authorities or the principles upon which they depend upon the
present occasion. In general it may be affirmed that mere personal
torts, which die with the party and do not survive to his personal
representative, are not capable of passing by assignment, and that
vested rights
ad rem and
in re, possibilities
coupled with an interest, and claims growing out of, and adhering
to property, may pass by assignment. But the material consideration
here is whether upon the principles of the law merchant, the right,
title, interest or possibility (call it which you may) to the
indemnity awarded in this case did not pass by the abandonment to
Vasse.
We do not think that upon an examination of the doctrines of
insurance, there is any difficulty in this part of the case. It
Page 26 U. S. 214
does not appear on the record whether there was, in this
instance, any formal instrument of abandonment or not, nor is it
material, for the law gives to the act of abandonment, when
accepted, all the effects, which the most accurately drawn
assignment would accomplish. By the act of abandonment, the insured
renounces and yields up to the underwriter all his right, title,
and claims to what may be saved, and leaves it to him to make the
most of it for his own benefit. The underwriter then stands in the
place of the insured and becomes legally entitled to all that can
be rescued from destruction. This is the language of the elementary
writers, and is fully borne out by Mr. Marshall and Mr. Park in
their treatises on insurance. Mar. on Ins. B. 1
a14. Park
on Ins., ch. 9, 228; 279.
"Where [says Mr. Marshall], as in case of capture, the thing
insured and every part of it is completely gone out of the power of
the insured, it is just and proper that he should recover at once,
as for a total loss, and leave the
spes recuperandi to the
insurer, who will have the benefit of a recapture or of any other
accident by which the thing may be recovered."
Mr. Park uses equally strong language -- he says
"The insured has a right to call upon the underwriter for a
total loss, and of course to abandon, as soon as he hears of such a
calamity having happened, his claim to an indemnity not being at
all suspended by the chance of a future recovery of part of the
property lost, because by the abandonment that chance devolves upon
the underwriters."
It is very clear that neither of these learned writers meant to
confine these remarks to cases where the specific property itself
or its proceeds were restored, for the whole current of their
reasoning in the context goes to show that whatever may be
afterwards recovered or received, whether in the course of judicial
proceedings or otherwise, as a compensation for the loss, belongs
to the underwriters, and for this purpose they refer to the case of
Randall v. Cochran, 1 Vez. 98, before Lord Hardwicke,
where this very point was adjudged. In that case, the King had
granted letters of reprisal against the Spaniards, for the benefit
of his subjects in consideration of the losses which they had
sustained by unjust captures, and he appointed commissioners to
distribute the produce of these reprisals among the sufferers, and
the commissioners would not suffer the underwriters, but only the
owners, to make claim for the losses, although the owners were
already satisfied for their loss by the underwriters. Lord
Hardwicke decreed that the owner should account for the same to the
underwriter, and said
"The person who originally sustained the loss was the owner, but
after satisfaction made to him, the insurer. No doubt but from that
time, as to the goods themselves, if restored in specie or
compensation made for them, the insured stood as a trustee for
Page 26 U. S. 215
the insurer in proportion to what he paid, although the
commissioners did right to avoid being entangled in accounts and in
adjusting the proportion between them. Their commission was limited
in time; they saw who was owner; nor was it material to whom he
assigned his interest, as it was in effect after satisfaction
made."
This case reflects no inconsiderable light upon the point
already discussed as to the conclusiveness of the award of the
commissioners. But it is decisive that the assignment by
abandonment is competent not only to pass the property itself or
its proceeds if restored, after an unjust capture, but also any
compensation awarded by way of indemnity therefor. The case before
Lord Hardwicke was the stronger because the indemnity was awarded
to the party by his own sovereign, and not by the sovereign of the
captors. Mr. Marshall and Mr. Park manifestly contemplate the case
as establishing the principle that any indemnity, however arising,
is a trust for the underwriters after they have paid the loss. Park
on Ins., ch. 8, p. 229; Mar. on Ins., B. 1, ch. 14, § 4.
The case of
Gracie v. New-York Insurance Company, 8
Johns. 237, recognizes the same principle in its full extent. That
was a case of abandonment after a capture and where there had been
a final condemnation, not only by the courts in France, but an
express confirmation of the condemnation by the sovereign himself.
One question was whether the jury were at liberty to deduct from
the total loss, the value of the
spes recuperandi. The
court held that they were not. Mr. Chief Justice Kent, in
delivering the opinion of the court, said
"If France should at any future period agree to and actually
make compensation for the capture and condemnation in question, the
government of the United States, to whom the compensation would in
the first instance be payable, would become trustee for the party
having the equitable title to the reimbursement, and this would
clearly be the defendants [the underwriters] if they should pay the
amount"
&c. The case of
Watson v. Insurance Company of North
America, 1 Binn. 47, proceeds upon the same principles. It
admits that the
spes recuperandi passes by an abandonment
to the underwriter, and the question there was whether its value
when not abandoned was to be deducted from the total loss. We
consider it, then, clear upon authority that the right to the
compensation in this case, was in its nature assignable, and passed
by abandonment to Vasse, and upon principle we should arrive at the
same conclusion. The right to indemnity for an unjust capture,
whether against the captors or the sovereign, whether remediable in
his own courts or by his own extraordinary interposition and grants
upon private petition or upon public negotiation, is a right
attached to the
Page 26 U. S. 216
ownership of the property itself, and passes by cession to the
use of the ultimate sufferer. If so assignable to Vasse, it was
equally, in its own nature, capable of assignment to others, and
the only remaining inquiry would be whether it had so passed by
assignment from him.
The case of
Campbell v. Mullet, 2 Swanston 551, already
adverted to, has been pressed upon the attention of the Court as
indicating, certainly not as deciding, a doctrine somewhat
different. In that case, the compensation had been awarded by the
commissioners under the British treaty of 1794 to American citizens
for unjust captures made by British cruisers, and there had been
condemnations by the highest appellate courts of prize. One
argument was that the compensation so granted was not to be deemed
a mere donation to the parties who received it for their own use,
but an indemnity. The Master of the Rolls, in answer to this,
said:
"It is said that the sums awarded by the commissioners are not
matter of bounty or donation. Can they be a matter of right? What
is right? That which may be enforced in a court of justice. Had the
parties, whose property was condemned by irrevocable sentence, any
right? What they obtain after that condemnation is not founded in
right, but in policy between the nations, providing compensation to
individuals who have lost property by sentences which are thought
unjust. The grounds of relief before the commissioners are the want
of any redress in any municipal courts. Whatever the individual
obtains is not on the ground of right or private property, but of
hardship and injustice. Though this therefore is not a case of pure
donation, as of a gift without anything in the nature of a
consideration, yet for the purpose of being contrasted with
property or right, it is a donation, not a restoration of a former
right, but from a new fund, belonging to an independent authority,
a grant to the sufferer for what he lost."
Such is the language of the learned judge, and we cannot say
that the reasoning is at all satisfactory. It is not universally,
though it may ordinarily be one test of right, that it may be
enforced in a court of justice. Claims and debts due from a
sovereign are not ordinarily capable of being so enforced. Neither
the King of Great Britain nor the government of the United States
is suable in the ordinary courts of justice for debts due by
either. Yet who will doubt that such debts are rights? It does not
follow, because an unjust sentence is irreversible, that the party
has lost all right to justice, or all claim, upon principles of
public law, to remuneration. With reference to mere municipal law
he may be without remedy, but with reference to principles of
international law, he has a right both to the justice of his own
and the foreign sovereign. The
Page 26 U. S. 217
theory, too, that an indemnification for unjust captures is to
be deemed, if not a mere deviation, as in the nature of a donation,
as contrasted with right is not admissible. It is reasoning against
the clear text of the treaty itself. What says the treaty of 1794,
§ 7? That where American citizens have sustained losses or
damages
"by reason of irregular or illegal captures, or condemnations of
their vessels, or other property, under color of authority or
commissions from His Majesty, and adequate compensation cannot be
obtained by the ordinary course of judicial tribunals, full and
complete compensation for the same will be made by the British
government to the said complainants."
The very ground of the treaty is that the municipal remedy is
inadequate, and that the party has a right to compensation for
illegal captures by an appeal to the justice of the government. It
was never understood that the case was one to which the doctrine of
donation applied. The right to compensation, in the eye of the
treaty, was just as perfect, though the remedy was merely by
petition, as the right to compensation for an illegal conversion of
property in a municipal court of justice. The case of
Randall
v. Cochran, 1 Vez. 98, stands upon the true ground. It
considers the right of indemnity as traveling with the right of
property. In that case it might have been said, in answer to the
claims of the underwriters, that they had no title, because it was
a case of donation by the Crown, out of funds provided by
reprisals. So perhaps the commissioners thought, but Lord Hardwicke
decided otherwise. There cannot be a doubt that if the party
injured had died before or after the treaty was made, and
compensation had been subsequently decreed, it would have been
assets, and distributable as such in the hands of his executors and
administrators. The remarks which have been made upon this case are
equally applicable to the provisions for indemnity under the treaty
with Spain. It recognized an existing right to compensation in the
aggrieved parties, and did not in the most remote degree turn upon
the notion of a donation or gratuity. It was demanded by our
government as matter of right, and as such it was granted by
Spain.
We may now come to the point, which indeed is the only one of
any intrinsic difficulty in the cause -- whether the right, so
vested in Vasse, to a compensation passed, under the bankruptcy
assignment, to his assignees? That this is a question free of doubt
will not be affirmed by any person who has thoroughly examined it,
or read with care the elaborate opinion of the court below. The
true solution of it must be found in a just exposition of the
object, intent, and language of the Statute of Bankruptcy of 1800,
ch. 19. The act begins by an enumeration of the persons who are
liable to be declared
Page 26 U. S. 218
bankrupts, and among them are "underwriters or marine insurers."
This plainly shows the sense of the legislature, that such persons
might, by the ordinary course of their business, be reduced to
insolvency, and be justly placed within the beneficial operation of
such a law. It tends also to the presumption that it might have
been the intent of the legislature, that the rights devolved upon
them, from the nature of the losses for which they were liable, so
far as under any circumstances they might or could be valuable
rights, should be available as a fund for the benefit of their
creditors, in case of their bankruptcy. As the legislature meant to
exonerate the underwriter from all future liability for his debts,
it would seem natural that the claims abandoned to him, which might
constitute the whole of his effective estate, should be vested in
his assignees for the benefit of his creditors. If he possessed
claims by abandonment to the amount of $100,000, which might, by
future events, be rendered more or less productive, and which might
be (as they have often been) saleable and transferable in the
market, such funds, present or expectant, might well be deemed
within the legislative policy and fit to pass to the creditors by
assignment. It might otherwise happen that large recoveries might
ultimately vest in the bankrupt for his own exclusive benefit upon
rights preexistent, and vested at the time of his bankruptcy. If
such a course of legislation would not be unnatural, let us next
see what is the precise language of the statute itself. The fifth
section declares that it shall be the duty of the commissioners,
after the party has been declared a bankrupt,
"to take into their possession all the estate,
real and
personal, of every nature and description, to which the
bankrupt may be entitled, either in law or equity, in any manner
whatsoever, &c., and also the take into their possession, and
secure, all deeds and books of accounts, papers and writings,
belonging to the bankrupt, and shall cause the same to be safely
kept until assignees shall be chosen or appointed."
These words are certainly very general and comprehensive. "All
the estate, real and personal, of every nature and description, in
law or equity," is broad enough to cover every description of
vested right and interest, attached to and growing out of property.
Under such words, the whole property of a testator would pass to
his devisee. Whatever the administrator would take in case of
intestacy would seem capable of passing by such words. It will not
admit of question that the rights devolved upon Vasse by the
abandonment could, in case of his death, have passed to his
personal representative, and when the money was received, be
distributable, as assets. Why then should it not be assets in the
hands of the assignees?
Page 26 U. S. 219
Considering it in the light in which Lord Hardwicke viewed it,
as an equitable trust in the money, it is still an interest, or at
all events a possibility coupled with an interest. Besides, "all
deeds, books, accounts, papers, and writings of the bankrupt" are
to be taken into possession. Now the abandonment, and other
documents connected with it, fall precisely within these terms; and
as we shall immediately see, whatever is taken possession of by the
commissioners, is to be passed to the assignees. The sixth section
provides
"that the commissioners shall assign, transfer, or deliver over
all and singular the said bankrupt's
estate and
effects aforesaid, with
'all muniments and evidences
thereof,' to the assignees so chosen."
And for the most part the words "estate and effects" are used
throughout the act as descriptive of the property passing under the
assignment. The 11th, 12th, and 13th sections of the act respect
more particularly the transfer of the real estate, of the
mortgages, and of the debts of the bankrupt. It is only necessary
to say that they contain no language abridging the proper
inferences deducible from the language of the fifth section.
The 18th section contains provisions respecting the surrender
and examination of the bankrupt, and are very material. It provides
that upon such examination, he shall
"fully and truly disclose and discover all his or her effects
and estate, real and personal, and how and in what manner, and to
whom and upon what consideration, and at what time or times he or
she hath disposed of, assigned, or transferred, any of his or her
goods, wares, or merchandise, moneys, or other effects and estate,
and of all books, papers, and writings relating thereunto, of which
he or she was possessed or in which he or she was in any ways
interested or entitled or which any person or persons shall then
have, or shall have had in trust for him or her or for his or her
use at any time
before or after the issuing of the said
commission, or whereby such bankrupt, or his or her family,
then hath or may have, or except any profit, possibility of
profit, benefit, or advantage whatsoever,"
&c. It then goes on further to provide that the bankrupt
shall, upon such examination, execute in due form of law, such
conveyance, assurance, and assignment, of his or her estate,
whatsoever and wheresoever, as shall be deemed and directed by the
commissioners to
vest the same in the "assignees," and
also requires the bankrupt to deliver up "all books, papers, and
writings relating thereunto" which are in his possession, custody,
or power, at the time of the examination; upon his default in these
particulars, he is deemed a fraudulent bankrupt, and deprived of a
right to a certificate of discharge, and subjected to severe
punishments. If there were any doubt upon the meaning of the
language of
Page 26 U. S. 220
the fifth section, we think it is cleared up and illustrated by
that of the present. Here, the words "
profit, possibility of
profit, benefit, or advantage whatsoever," are used, and show
that mere interests
in praesenti and capable of present
enjoyment, were not alone within the scope of the legislative
enactments, but also all such interests, or possibilities of
interest as might thereafter beneficially arise from present vested
rights. It extends to such effects and estate "whereby the bankrupt
then hath, or may have or expect any profit." It has been supposed,
that this clause looks solely to property, which was not capable of
assignment, at the time of the bankruptcy, because not then vested;
inasmuch as the bankrupt himself, and not the commissioners, is
required to make an assignment of it. If this were so, it would not
affect the present case, because we are of opinion, that the claim
under consideration, was completely vested in right and interest in
Vasse, at the time of his bankruptcy. We think, however, that this
clause does not justify so narrow an interpretation. The disclosure
is required of estate and effects, in which the bankrupt was
interested, as well
before as after the issuing of the
commission, and the bankrupt is required to execute conveyances not
of such estate and effects merely as accrued after the commission,
but of his estate, "whatsoever and wheresoever." The object of the
provision was to make such conveyances auxiliary to, and
confirmatory of the assignments made by the commissioners, and we
believe, that in practice, it was so generally understood and acted
on while the statute was in force. The 50th section of the act has
been supposed to demonstrate the correctness of the construction of
the statute contended for by the counsel for the original
plaintiff. It declares
"That if any estate, real or personal, shall
descend, revert
to, or become vested in any person after he or she shall be
declared a bankrupt and before he or she shall obtain a
certificate, &c., all such estate shall, by virtue of this act,
be vested in the said commissioners, and shall be by them assigned
and conveyed to the assignees"
&c. This section plainly refers to estate to which the
bankrupt had no right or title whatever, in law or equity, vested
in interest or in possession, at the time of his bankruptcy. The
cases put are of property descending, reversing to, or becoming
vested in the bankrupt. In respect to a descent cast after the
bankruptcy, it is manifest that nothing could pass by any
antecedent assignment of the commissioners.
The heir, during the lifetime of his ancestor, has no right,
claim, title, or interest in the ancestral estate. It is a mere
naked expectancy, liable to be defeated at the will of the ancestor
at all times, and in no just sense a possibility of interest, a
right in the thing itself. The other words, "reverting
Page 26 U. S. 221
to, or become vested" in the bankrupt, require a like
interpretation. They allude to cases where the party had nothing
vested in him, as a subsisting interest, either absolute or
contingent,
in esse or
in futuro, until after the
bankruptcy, and when any such interest falls in before the
certificate of discharge, the commissioners, and not the bankrupt,
are to assign it, a circumstance which demonstrates that no stress
ought to be laid upon that part of the 18th section, already
alluded to, respecting a conveyance by the bankrupt himself, except
as a confirmation, and not as a principal assurance. It seems to us
then, that the 50th section aids rather than shakes the
interpretation of the statute which has been already announced. It
applies to no possibility of profit, benefit, or advantage, vested
at the time of the bankruptcy (as the present case is), but to
interests accruing to the party for the first time,
de
jure as well as
de facto, after the bankruptcy. This
view of the matter renders it unnecessary to consider whether there
is any substantial difference between the English statutes of
bankruptcy and our own on this subject, and of course in the
authorities applicable to it. Our opinion proceeds upon the purview
and objects, and on the terms of our own statute, and we are
accordingly of opinion that the judgment of the circuit court ought
to be reversed and a judgment entered in favor of the original
defendants. It is to be understood that upon the last point this is
the opinion of the majority of the Court.
The cause must be remanded with directions to enter a
judgment accordingly for the original defendants.
This cause came on, &c., on consideration whereof it is
ordered and adjudged by this Court that the judgment of the said
circuit court in this cause be and the same is hereby reversed and
annulled, and that a judgment be entered in the suit in favor of
the plaintiffs in error, Cornelius Comegys and Andrew Pettit, and
the cause remanded to said circuit court with directions to enter
judgment for the plaintiffs in error in this Court, Cornelius
Comegys and Andrew Pettit, accordingly.