ity, 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 *own- [*216 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.

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 under-ership of the property itself, and passes by writer; 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 215*] trustee for 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, s. 4.

The case of Gracie v. The New York Insurance Company, 8 Johns. R. 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. The Insurance Company of North America, 1 Binn. R. 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 author

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 jus

tice of his own and the foreign sovereign. | upon them, from the nature of the losses for 217*] The theory, too, that an indemnifica- which they were liable, so far as under any cir tion for unjust captures is to be deemed, if not cumstances they might or could be valuable a mere donation, as in the nature of a donation, rights; should be available as a fund for the as contrasted with right, is not admissible. It benefit of their creditors, in case of their bankis reasoning against the clear text of the treaty ruptcy. As the Legislature meant to exonerate itself. What says the treaty of 1794, s. 7? the underwriter from all future liability for That where American citizens have sustained his debts, it would seem natural that the claims losses or damages, "by reason of irregular or abandoned to him, which might constitute the illegal captures, or condemnations of their ves- whole of his effective estate, should be vested sels or other property, under color of authority in his assignees, for the benefit of his creditors. or commissions from His Majesty, and adequate If he possessed claims by abandonment, to the compensation cannot be obtained by the ordi- amount of $100,000, which might, by future nary course of judicial tribunals, full and com- events, be rendered more or less productive, plete compensation for the same will be made and which might be (as they have often been), by the British government to the said com- salable and transferable in the market; such plainants." The very ground of the treaty is, funds, present or expectant, might well be that the municipal remedy is inadequate; and deemed within the legislative policy, and fit that the party has a right to compensation for to pass to the creditors by assignment. It illegal captures, by an appeal to the justice of might otherwise happen, that large recoveries the government. It was never understood that might ultimately vest in the bankrupt, for his that case was one to which the doctrine of do- own exclusive benefit, upon rights pre-existent, nation applied. The right to compensation, in and vested at the time of his bankruptcy. If the eye of the treaty, was just as perfect, such a course of legislation would not be unthough the remedy was merely by petition, natural, let us next see what is the precise as the right to compensation for an illegal con- language of the statute itself. The fifth secversion of property in a municipal court of tion declares, that it shall be the duty of the justice. The case of Randall v. Cochran, 1 commissioners, after the party has been deVes. 98, stands upon the true ground. It con- clared a bankrupt, "to take into their possessiders the right of indemnity as traveling with sion all the estate, real and personal, of every the right of property. In that case it might nature and description, to which the bankrupt have been said, in answer to the claims of the may be entitled, either in law or equity, in any underwriters, that they had no title, because manner whatsoever, &c., and also to take into it was a case of donation by the crown, out their possession and secure, all deeds and books of funds provided by reprisals. So, perhaps, of accounts, papers and writings, belonging to the commissioners thought, but Lord Hardwicke the bankrupt; and shall cause the same to be decided otherwise. There cannot be a doubt safely kept, until assignees shall be chosen, or that, if the party injured had died before or appointed." after the treaty was made, and compensation These words are certainly very general and had been subsequently decreed, it would have comprehensive. "All the estate, real and perbeen assets, and distributable as such, in the sonal, of every nature and description, in law hands of his executors and administrators. or equity," are broad enough to cover every The remarks which have been made upon this description of vested right and interest, atcase are equally applicable to the provisions for tached to and growing out of property. Under indemnity, under the treaty with Spain. It such words, the whole property of a testator recognized an existing right to compensation would pass to his devisee. Whatever the adin the aggrieved parties, and did not, in the ministrator would take, in case of intestacy, most remote degree, turn upon the notion of would seem capable of passing by such words. a donation or gratuity. It was demanded by It will not admit of question, that the rights our government as a matter of right, and as devolved upon Vasse, by the abandonment, such it was granted by Spain. 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 assignee? Considering it in the [*219 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

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 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 218*] to be declared 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

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.

veyances, not of such estate and effects merely, as accrued after the commission, but of his estate, "whatsoever and wheresoever." The obobject 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, reverting to, or becoming vested in the bankrupt. In respect to a descent case, after the bankruptcy, it is manifest that nothing could pass by any antecedent assignment of the commissioners.

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 way, 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 expect any profit, possibility of profit, benefit, or advantage whatsoever, &c." It then goes on The heir, during the life-time of his ancestor, further to provide, that the bankrupt shall, has no right, claim, title or interest, in the anupon such examination, execute in due form of cestral estate. It is a mere naked expectancy, law, such conveyance, assurance, and assign- liable to be defeated at the will of the ancesment, of his or her estate, whatsoever and tor, at all times; and in no just sense, a possiwheresoever, as shall be deemed and directed bility of interest, a right in the thing itself. by the commissioners to vest the same in the The other words, "reverting to, or be- [*221 "assignees;" and also requires the bankrupt come vested" in the bankrupt, require a like to deliver up "all books, papers, and writings interpretation. They allude to cases where the relating thereunto," which are in his posses- party had nothing vested in him, as a subsistsion, custody, or power, at the time of the ex- ing interest, either absolute or contingent, in amination. Upon his default in these particu- esse, or in futuro, until after the bankruptcy; lars, he is deemed a fraudulent bankrupt, and and when any such interest falls in before the deprived of a right to a certificate of discharge, certificate of discharge, the commissioners, and and subjected to severe punishments. If there not the bankrupt, are to assign it; a circumwere any doubt upon the meaning of the lan- stance which demonstrates that no stress ought. 220*] guage of *the fifth section, we think it to be laid upon that part of the 18th section, is cleared up, and illustrated by that of the already alluded to, respecting a conveyance by present. Here, the words "profit, possibility of the bankrupt himself; except as a confirmation, profit, benefit, or advantage whatsoever," are and not as a principal assurance. It seems to used, and show that mere interests in presenti, us, then, that the 50th section aids, rather than and capable of present enjoyment, were not shakes the interpretation of the statute, which alone within the scope of the legislative enact has been already announced. It applies to no ments, but also all such interests, or possibil-possibility of profit, benefit, or advantage, vestities of interest, as might thereafter beneficially ed at the time of the bankruptcy (as the presarise from present vested rights. It extends to ent case is); but to interests accruing to the such effects and estate, "whereby the bankrupt party for the first time, de jure as well as de then hath, or may have or expect any profit." facto, after the bankruptcy. This view of the It has been supposed that this clause looks matter renders it unnecessary to consider solely to property, which was not capable of whether there is any substantial difference beassignment, at the time of the bankruptcy, between the English statutes of bankruptcy and cause not then vested; inasmuch as the bank rupt 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 con

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 | judgment, and determination of Lewis Brantz whereof, it is ordered and adjudged by this and Henry Child, both of Baltimore, merchants; court, that the judgment of the said Circuit arbitrators indifferently chosen, and named by Court, in this cause, be, and the same is, hereby and on behalf of the said parties, to award, reversed and annulled; and that a judgment be order, arbitrate, judge, and determine, concernentered in the suit, in favor of the plaintiffs ing the same. And if the said arbitrators canin error, Cornelius Comegys and Andrew Pettit; not determine the same, that then the same and the case remanded to said Circuit Court, shall be fully ended and determined by a third with directions to enter judgment for the plain- person, to be by them chosen as an umpire, in tiffs in error in this court, Cornelius Comegys such *manner as hereinafter is, in that ‍[*223 and Andrew Pettit, accordingly. behalf, mentioned and expressed.

Rev'g 4 Wash. 570.

Now, the condition of this obligation is such, that if the above bound Charles W. Karthaus, his heirs, executors, administrators, and every of them, shall and do, for and on his and their

222*] *CHARLES W. KARTHAUS, Plaintiff parts, in and by all things, stand to, obey,

in Error,

V.

abide, perform, fulfil, and keep the award, arbitrament, order, determination, final end, and

FRANCISCO YLLAS Y FERRER et al., De- judgment, which shall be by them, the aforesaid

fendants in Error.

arbitrators, made, of and concerning the premises, and of all disputes, differences, actions,

Arbitrament—partnership-presumption in fa- suits, claims, and demands whatsoever, touch

vor of award-pleading.

There is a class of cases, upon awards, to be found in the books, in which arbitrators have been heid to more than ordinary strictness, in pursuing the terms of the submission, and in awarding upon the several distinct matters submitted, upon the ground of this submission being conditional, ita quod. But the rule is to be understood, with this qualification, that in order to impeach an award made in pursuance of a conditional submission, on the ground of part only of the matters in controversy having been decided, the party must distinctly show that there were other points in difference, of which express notice was given to the arbitrators; and that they neglected to determine them. [227]

One partner, during the continuance of the partnership, cannot bind the other partner to a submission of the interests of both, to arbitration; but he might bind himself, so as to submit his own interests to such decision. [228] It is a settled rule in the construction of awards, that no intendment shall be indulged to overturn an award, but every intendment shall be allowed to uphold it. [228]

[228]

If a submission be of all actions, real and personal, and the award be only of actions personal, the award is good; for, it shall be presumed, no actions real were depending between the parties. When, upon a submission by one partner of all matters in controversy between the partnership and the 'person entering into the agreement of ref erence, an award was made, directing the payment of money. in an action on the bond, to abide by the award, the breach assigned was, that the partner who agreed to the reference did not pay, &c. this is a sufficient assignment of a breach, as he only who agreed to the reference was bound to pay. [231]

ing and concerning the same, so as such award, arbitrament, determination, final end, and judgment of the said arbitrators, of and in the premises, be by them made and given up in writing under both their hands and seals, ready to be delivered to each of the said parties in controversy, in fifty days from the date hereof.

"And if they, the said arbitrators, of and in the said premises, cannot agree, end, and determine the same, in fifty days from the day of the date hereof, that then if the said Charles W. Karthaus, his heirs, executors, administrators, and every of them, shall and do, for and on his and their parts, in and by all things, stand to, obey, abide, perform, fulfil, and keep the award, arbitrament, and umpirage, of the above-named arbitrators, and such third perpirage and judgment of the said arbitrators, shall indifferently name, elect and choose, for the ending and determining the same premises, or a majority of them, so as such award, umpirage, and judgment of the said arbitrators and umpire, or a majority of them, of and concerning the same, be by them so made and given up in writing, under their hands and seals, ready to be delivered to each of the said parties in controversy, in sixty days from the day of the date hereof. This obligation to be void and of no effect, otherwise the same shall remain in full force and virtue.”

Upon this reference, the following award was made, under the hands and seals of the

ON the 16th of January, 1823, the plaintif in arbitrators and the umpire:

error gave an bond, the usual "We, the undersigned, Henry Child and Lewis form, with sureties, to the defendants in error, Brantz, as arbitrators, and Michael M'Blair, as in which it was set forth, that, "whereas cer- umpire, acting in virtue of the annexed bond tain disputes, differences, and controversies or instrument of writing, do hereby award, and have arisen, and are still depending, between adjudge, that the late firm of Charles W. Karthe above bounded Charles W. Karthaus, act- thaus & Co., pay, or cause to be paid, unto ing for the late house of Charles W. Karthaus Francisco Yllas y Ferrer and Josef Antonio & Co., and himself, and the above-named Fran- Yllas, or their representatives, the sum of fourcisco Yllas y Ferrer, and Josef Antonio Yllas, | teen hundred and seventy-five dollars, for a for the ending and determining the disputes, balance of the general account current between differences, and controversies, aforesaid, and the parties; and also the sum of thirteen hunall actions, suits, claims, and demands what-dred and ninety-eight dollars, for a balance soever, concerning the same, the said parties have agreed to refer the same to the award,

NOTE. As to awards and arbitration, see notes, 6 L. ed. C. S. 516; 15 L. ed. U. S. 96; 18 L. ed. U. S. 700; 43 L. ed. U. S. 118; 15 L.R.A. 142.

arising out of the moneys recovered for the brig Arogante Barcelonese and cargo, in which award, a parcel of cutlasses, or their proceeds, are considered as becoming the prop- [*224 erty of said Yllas y Ferrer."