-~ ed so as to enhance the premium-is, in many | leading opinion of the conclusion to which facts cases, an inquiry dependent upon the judgment ought to conduct the jury. This ought not to of underwriters and others, who are conversant be deemed an intentional withdrawal of the with the subject of insurance. In this very facts, or the inferences deducible therefrom, 189*] case, the introduction of testimony from the cognizance of the jury; but rather as was indispensable, to show the usual length of an expression of opinion addressed to the disthe voyage; and it was quite questionable, cretion of counsel, whether it would be worth whether, in a just sense, the vessel could be while to proceed further in the cause. And the deemed a missing vessel at the time of the in like expression in summing up any cause to the surance. Upon such a point, it would not be a jury, must be understood by them merely as a matter of surprise, if different underwriters strong exposition of the facts, not designed to should arrive at different results. In the nature overrule their verdict, but to assist them in of the inquiry, then, there is nothing to distin forming it. And there is the less objection to guish the time of sailing of the ship from any this course in the English practice; because, if other fact, the representation of concealment of the summing up has had an undue influence, which is supposed to be material to the risk. It the mistake is put right by a new trial, upon an must still be resolved into the same element. application to the discretion of the whole court. It has been said, that there is no case in which This is so familiarly known, that it needs only the materiality of the time of sailing has been to be stated, to be at once admitted. It is with doubted, where the ship was abroad at the reference to these considerations, that the cases time; whether this be so or not, it is not im- above alluded to should be examined. portant to ascertain, unless it could be univer- The first is Ratcliff v. Shoobred, cited from sally affirmed (which we think it cannot), that Marshall on Insurance, p. 290. It would certhe time of sailing abroad must always be ma- tainly seem, at the first view, that Lord Mansterial to the risk. If it may not always be ma- field did decide that concealment was material. terial, the question, whether it be so in the par- But even by Mr. Marshall's report, brief as it ticular case, is to be decided upon its own cir- is, it by no means appears that the materiality cumstances. Indeed, we cannot perceive how was in question at the trial, but only the effect the place of sailing, whether from a home or of the concealmeat in avoiding the policy. The foreign port, can make any difference in the same case is reported more fully and more acprinciple. The time of sailing from a home curately by Mr. Park on Insurance (p. 290), port may be material to the risk, and if so, the where it is perfectly clear that the point of concealment of it will vitiate the policy; but | materiality was left to the jury. "The question whether material or not, opens the same inqui- is," said his lordship, whether this be one of ⚫sition into facts as governs in cases of foreign those cases which is affected by misrepresentaports. There may be less intricacy in conduct- tion or concealment." If the plaintiffs concealed ing it, or less difficulty in arriving at a proper any material part of the information they reconclusion, but it is essentially the same pro- ceived, it is a fraud, and the insurers are not cess. The case of Fort v. Lee (3 Taunt. R., liable; and the jury found a verdict for the de381), did not proceed upon the ground, that fendant, under this direction. So that the point the time of sailing from a home port was never was left fully open to them. material to be communicated; but, that under the circumstances of that case, the underwriter, if he wished to know whether the ship had sailed, ought to have made inquiry. It was a mere application to the discretion of the court to grant a new trial, where the plaintiff had obtained a verdict, and there was no pretense of any misdirection at the trial. In Foley v. Moline (5 Taunt., 145), the court said that there was no pretense for the proposition, as a general rule, that it was necessary to communicate to the underwriters whether the vessels on which an insurance was proposed, had sailed or not. There might be circumstances, that would render that fact highly material; as if the ship were a missing ship, or out of time. So that here, a denial of the proposition now asserted before us, was, in the most explicit terms, avowed and acted on. Two nisi prius cases before Lord Mansfield, have been relied on to establish the supposed exception to the general rule of cases, relative to the time of the sailing of the ship; in which it is argued, that his lordship undertook to decide the point of materiality, as matter of law, 190*] and to give it as a rule to the *jury. It is proper to remark, that little stress ought to be laid upon general expressions of this sort by judges, in the course of trials. Where the facts are not disputed, the judge often suggests, in a strong and pointed manner, his opinion as to the materiality of the concealment, and his The next case is Fillis v. Berton, cited in Marshall on Insurance, 467, and reported also in Park on Insurance, 292. The insurance was on a ship from Plymouth to Bristol; and it appeared, that the broker's instructions stated that the ship was ready to sail on the 24th of December, when, in fact, she had sailed on the 23d. Mr. Marshall states, that Lord Mansfield ruled that this was a material concealment and misrepresentation; but Mr. Park, from whose work the report is professedly taken, uses no such expression. His words are, Lord Mansfield said this was a material concealment and misrepresentation; and the jury hesitating, he proceeded to expound to them the [*191 general principles of law on the subject of misrepresentation and concealment; and he seems to have taken it for granted that the misrepresentation was material (as from the short duration of such a voyage might naturally be inferred), and that the only point was, whether the ship had sailed or not. The same explanation disposes of the case of M'Andrews v. Bell (1 Esp. Rep., 373). Indeed, in any other view, it would be impossible to reconcile these decisions with the judgment pronounced by Lord Mansfield, and other judges, upon more mature deliberation, when causes have been brought before them in bank. Take, for instance, what fell from the court upon the tion for a new trial, in M'Dowell v. Praza (Doug. R., 247, 260), Shirley v. Wilkinson mo Hodgson v. (Doug. R., 236), Richardson was to invest the commissioners with full power (1 Bl. Rep.. 289), Littledale v. Diron (4 Bos. and authority to receive, examine, and decide upon the amount and validity of asserted claims upon & Pull., 151), and Hull v. Cooper (14 East, Spain, for damages and injuries. Their decision, R., 79). In the case of the Maryland Insurance within the scope of this authority, is conclusive Company v. Ruden's Administrators (6 Cranch, and final, and is not re-examinable. The parties 338), this court expressed the opinion that "itust abide by it, as the decree of a competent tribunal of exclusive juri-diction. A rejected was well established, that the operation of any claim cannot be brought again under review, in concealment on the policy depends on its any judicial tribunal. But it does not naturally materiality to the risk, and that this ma- conflicting rights, of different citizens, to the fund follow that this authority extends to a just all teriality is a subject for the consideration of so awarded. The commissioners are to look to the a jury.' That opinion was acted upon by the original claim for damages and injuries against Court of Errors of New York, in the case of Spain itself; and it is wholly immaterial who is the legal or equitable owner of the claim, provided the New York Fireman Insurance Company v. he is an American citizen. [212] Walden (12 John R., 513), where Mr. Chancellor Kent, in a very elaborate judgment, reviewed the authorities, and laid down the doctrine in a manner that merits our entire approbation. We think, then, that the exception insisted upon at the bar, cannot, upon principle or authority, be supported; and that the question of materiality of the time of the sailing of the ship to the risk, is a question for the jury, under the direction of the court, as in other cases. The court may aid the judgment of the jury, by an exposition of the nature, bearing, and pressure of the facts, but it has no right to supersede the exercise of that judgment, and to direct an absolute verdict as upon a contested matter of fact, resolving itself into a mere point of law. If, indeed, the rule were otherwise, the facts in the record are not so full as to enable the court to reach the desired conclusion. There is not sufficient matter upon which we could positively say that the time of sailing was, in this case, necessarily material to the risk. For these reasons, the judgment of the Circuit Court must be reversed, and the cause remanded, with directions to award a venire facias de novo. This cause came on, &c. On consideration whereof, it is considered by this court, that there is error in the opinion of the Circuit Court, given to the jury upon the prayer of the 192*] *defendants' counsel; that upon the whole evidence in the case, as stated in the record, the plaintiffs are not entitled to recover, and that the verdict of the jury ought to be for the defendant; that opinion having withdrawn from the proper consideration of the jury, matters of fact in controversy between the parties. It is therefore further considered and adjudged, that the judgment of the said Circuit Court, in this case, be, and the same is hereby reversed; and that the cause be remanded to the said Circuit Court, with directions to award a venire facias de novo. Cited 8 How., 248; 13 How., 131; 1 Wall, 598; 5 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. [212] 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. [213] 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 destruction. [214] It is clear, that the right to compensation for damages and injuries, to which citizens of the treaty with Spain, were to be the subjects of comUnited States were entitled, and which, under the pensation, passed by abandonment to the underwriters upon property which had been seized or captured. [215] The right to indemnity for an unjust capture, on the sovereign-whether remediable in his own courts or by his own extraordinary interposition, or grants upon private petition, or upon public negotiation-is a right attached to the ownership of the property itself, and passes by cession to the account of the ultimate sufferer; and is afterwards assignable to the person to whom it had been ceded. [215] It is not universally, though it may be ordinarily, court of justice. Claims and debts due by a soverthe test of a right, that it may be enforced in a eign, are not commonly capable of being so enforced. It does not follow, that because an unjust red has lost all right to justice, or all claim, upon sentence cannot be reversed, that the party inprinciples of public law, to remuneration. [216] The treaty with Spain recognized an existing and did not, in the most remote degree, turn upon right in the aggrieved parties to compensation; the notion of donation or gratuity. It was demanded by our government as matter of right, and as such was granted by Spain. [H] The right to compensation from Spain, held under abandonment made to underwriters, and accepted by them, for damages and in- [*194 juries, 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. [219] THIS HIS case came before the court, by writ of error to the Circuit Court of Pennsylvania. Otto, 238; 2 Wood. & M., 154, 489, 493; 3 Wood. & M., The defendant in error instituted his suit 189; 6 McLean, 337; Olcott, 115; 1 Sawy., 483. 193*] *CORNELIUS COMEGYS AND ANDREW PETTIT, Plaintiff's in Error. v. AMBROSE VASSE, Defendant in Error. 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 NOTE. Mere personal torts not assignable. Commissioners under Florida treaty-assign-able. (Brooks v. Hanford, 15 Abb., 342: Hodgman ment-abandonment-indemnity. The object of the treaty with Spain, which ceded Florida to the United States, dated 22d May, 1819, v. Western R. R. Corporation, 7 How., 492; Purple v. Hudson River R. R. Co., 1 Abb. Pr., 33; 8. C., 4 Duer, 74; Butler v. N. Y. & E. R. Co., 22 Barb., 110; Nash v. Fredericks, 12 Abb. Pr., 149; Oliver v. a uniform system of bankruptcy throughout the assignees of Ambrose Vasse, is conclusive the United States, passed April 5, 1800. in their favor, and against him. 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 verdiet, 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 the 28th day of 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 the 22d day of February, 1819, on account of the captures and losses aforesaid. On the 9th day of 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 commis 195] sioners; but it was not *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. The plaintiffs in error made the following points: 1. That the decree of the commissioners under the Florida treaty, awarding the fund to Walsh, 6 Cal., 456; Brooks v. Hanford, 15 Abb. Pr.. 342.) A cause of action which will not descend to the representatives of a party cannot be assigned. (Hyslop v. Randall, 11 How., 97; 4 Duer, 660; Jabriskie v. Smith, 13 N. Y., 322: McKee v. Judd, 12 N. Y., 622; Divinny v. Fay, 38 Barb.. 18; Fried v. N. Y. R. R. Co., 25 How., 285; People v. Tioga, Com. Pleas, 19 Wend., 73.) A cause of action for a personal injury, such as assault and battery, is not assignable so as to give the assignee the right to prosecute an action therefor against the wishes of his client, or to preve t the settlement thereof by his client; although it 2. That if the claim on the Spanish government was not legally the subject of assignment, and therefore did not pass under the bankrupt proceedings, to the assignees, it could not pass under the abandonments made to Ambrose Vasse; who claims the fund, not as the original proprietor, but through cessions or assignments of the property made to him as an underwriter. 3. That this claim, as an incident to the property captured and carried into Spanish ports, did pass under the assignment of the bankrupt, and became vested in his assignees. The case was argued by Mr. J. R. Ingersoll, and Mr. D. B. Ogden, for the plaintiffs in error, and by Mr. Lee, and Mr. C. J. Ingersoll, for the defendant. For the plaintiffs in error, it was contended, 1. That the commissioners, under the Florida treaty, had fixed the relative rights of the parties, by awarding the fund to the assignees, in the face of a claim presented by the bankrupt himself. In deciding thus, they decided, in effect, on the validity and operation of the assignment. The proceeding was not merely ex-parte, but afforded to the bankrupt an opportunity to exhibit his pretensions; of which he had not failed to avail himself. His act of interposition was manifested by a bill in equity, filed in the Circuit Court of the District of Columbia, for the county of Washington, in December, 1823; in which Ambrose Vasse, the complainant, states the facts now before this court, and attempts to reach the fund, not (as at present) from the assignees, but against the assignees; and to wrest it, not from the commissioners, but from the treasurer of the United States, who acted under their authority and decrees; and was, accordingly, made a party to the bill. If the commissioners have really decided the point-and, in so doing, they have not exceeded their jurisdiction-no appeal lies to this court. They acted under a treaty, which is the supreme law of the land; and no other tribunal, however exalted, can reverse, or interfere with their decrees. The bill in equity admits that Ambrose Vasse never filed the original claim. Hence, it appears that all the documents in support of it were in the possession of his assignees; and [*196 they enjoyed this evidence of ownership, at least. It is not, however, necessary, that the award of the commissioners should be conclusive, as the case of the plaintiffs in error is sufficiently strong upon the other points, which have been decided in the court below. 2. The argument of the defendant in error is absolute and unqualified-that the claim which has yielded the fund in controversy, was of a description which could not be assigned. may be valid between the parties as an agreement entitling the assignee to the results of its prosecution. (Pulver v. Harris, 62 Barb., 500; Aff'd, S. C., 52 N. Y., 73.) In general, mere personal torts, which die with the party, and do not survive to his personal representatives, are incapable of passing by assignment. (Grant v. Ludlow, 8 Ohio St., 1: Linton v. Hurley, 101 Mass., 353; Norton v. Tuttle, 60 Ill., 130; McGlinchy v. Hall, 58 Me, 152.) A verdict recovered for a personal tort is assignable. (Zogbaum v. Parker, 66 Barb., 341.) and the little chance of hope of redress, or indemnity to which the underwriters succeeded, was to be gathered from the sense of justice of these ruthless belligerents. Hence, transfers of these claims were of perpetual occurrence. Not only were the transfers made, and deemed worthy of acceptance, but our American courts of justice would permit no recovery from the insurers, until à cession had been actually made. (Brown v. Phanix Ins. Co., 4 Binu., 45; Rhinelander v. Penn. Ins. Co., 4 Cranch, 42.) Not only this; the time when abandonment cannot be made, is after restitution-when the opposite argument supposes the right only begins. (Adams v. The Del. Ins. Co., 3 Binn., 287; Marshall v. The Del. Ins. Co., 4 Cranch, 202.) The claims on Denmark, France, England, Naples, and Holland, comprise, agreeably to a sober estimate, seventeen millions of dollars, of American capital, locked up in the coffers of foreign potentates; and, long since, for the most part, re-imbursed to the original proprie tors, and resting on the insurance offices to an immense extent. That the right to receive did not exist in himself; and, therefore, he could not transfer it to others; that he had nothing to assign; that his hopes rested on the will of an unaccountable, because sovereign power, who might, or might not, realize them; that no legal remedy could be pursued; and, without some species of remedy, there can exist no right; that a claim, to be assignable, or even to have existence, means something not ideal, or merely precarious, but substantial, and susceptible of enforcement; not merely to be thought of, but pursued; and, by possibility, to be gained. Admitting, for a moment, both the position and the inference, the shadowy character of the claim, and the impossibility of transferring its ownership-and where does the defendant in error stand? His right to sue and recover, either from the commissioners or his assignees, is derived through exactly the same sort of channel as that of his antagonists. The only difference is, that he claims through a limited and partial assignment; and they through a general and all-comprehensive one. He was not the original owner. He was an underwriter, merely, on the property lost; and, when he paid the losses, he received Why is it that a policy always stipulates, the assignments without an idea that, at a that the insured shall sue, labor, &c., after distant day, this would be the shape in which capture, and even after condemnation, if the they would develop themselves. He made his one party be requiring, and the other underassignment when everything was entirely un- taking a wild, preposterous, and desparing purchanged. If all the representative interests are suit? It is the spes recuperandi—the incident to be disregarded, and the political bounty is to the property, or substitute for it, wlrich is to enure to the first proprietor, then, we are ac- transferred in whatever shape it may at a countable, not to Ambrose Vasse, the under-distant day present itself; although the transwriter, but to the original proprietors them- fer may be in form of the property itself. A selves. If the opposite argument be sound, thing need not be in possession, to be transneither of these parties is entitled to the money; ferred. It may be on the other side of the and then, potior est conditio defendentis. globe. It need not even have actual existNor does the defendant in error, injudicious-ence, to be the subject of a legal contract of ly concede anything, in the position which he assumes. He has no standing without it. Whatever he had, in the shape of property. passed by the bankruptcy. His only refuge, is in the suggestion that there was nothing, in the shape of property, to pass; and then, he is unhappily landed here, that being himself a claimant of it, as property, because under an assignment, the same argument applies with equal force to himself; and he is exactly as badly situated as his opponents. 197*] *The bankrupt thought the claim passed by the assignment, and intended that it should-for claims of a similar character upon the French and British governments, are stated among his effects, in the schedule laid before the commissioners. This, upon the government of Spain was omitted-probably because it was regarded as desperate, not being then included in any treaty. 3. There was a clear property to be assigned; | and it was assigned by the original owners to the underwriter, and by the underwriter to his assignees. 1. Independently of all questions growing out of mere bankruptcy, this was, in its nature, peculiarly the subject of assignment. In matters of insurance there was a time when nearly every transfer consisted of a claim on a foreign government. No neutral vessel could, with safety, navigate the ocean. The attempt led, in instances innumerable, to capture and condemnation. Insurances were resorted to at any rate of premium, however extravagant; transfer or sale. A ship out of time-the hope or chance of redemption is sold in [*198 good faith. It appears, afterwards, that she was at the time consumed by fire, or at the bottom of the sea. Yet the contract was good. 2. As a matter of bankruptcy concern, and to be regulated by the principles of bankrupt laws. The treaty itself says not a word as to the person by whom the restored property, or its substitute is to be received. It merely provides and awards the fund; but whether for the original owner or underwriter or assignee is submitted to the general principles of established law. If it had provided eo nomine for the bankrupt, then it might, indeed, have been considered a solace for his general misfurtunes, derived from a kind but ill-judged policy; and the political bounty (as it would then really be) would perhaps flow exactly where it was directed. But the argument founded upon the idea of political bounty is defective, when it attempts on that ground to give the fund to the bankrupt; since the treaty leaves that point, viz., the individual object of its kindness, entirely undefined. In the concatenation of inferences, one essential link is wanting, namely, that the particular individual is to be re-imbursed. But why should the underwriter be preferred? He is not the original sufferer, whose feelings are to be assuaged; nor the final loser, whose pecuniary injuries are to be redressed. Had the violation of neutrality, which is remedied by the treaty, never occurred, the property would have remained with the insured. As it is, the underwriter has paid the loss, but he has done it with the money of his creditors; and hence the deficit manifested in his bankruptcy. The real losers, then, on principle, have the fairest claim to redress. As to the propriety of adopting bankrupt laws, there may be differences of opinion; but with respect to their object, policy, and true application, when established, there can be none. They are not technical, but substantial. If they give relief from present difficulties, and hope and energy to future exertions, it is in consequence of entire renunciation of all benefit from the past. If ingenuity could discover means by which debtors, notwithstanding their seeming surrender of all, could still retain a lurking interest, which deprives the creditor of his expected consolation; it would not be surprising that bankrupt laws should be forever discountenanced by legislative opposition, and that one general mercantile community should continue under the influence of a multitude of heterogeneous insolvent systems, feeble in their protection of the debtor, and worse than useless to the creditor. It were extraordinary, indeed, if the effect of bankruptcy were to protect previously acquired property. But for his certificate, execution might be levied, attachment might 199*] reach the *fund, the wit of man could not elude the scrutiny of the law. Yet, the bankruptcy, which is designed to facilitate the assertion of these rights, if the present effort succeeds, would take them all away. The moment one becomes a bankrupt, a clear line is drawn between what is his and what is his creditors'. The faculties which God and nature have given him the disposition to labor, and the capacity for exertion of mind and body are his own, inalienably, and nothing can deprive him of them. Even the personal claims to redress for bodily wrongs, which grow out of his person, and not out of his creditors' property, remain. But results arising from the investments of property, whether voluntarily or involuntarily made, however, or whenever to arise, tracing their origin to previous possessions, are to return to those with whom they originated, and who did but advance them. Hence, all the limitations to the transfer by bankrupty, are reducible to three classes: 1. Such as may never happen, being not merely future in their actual existence, but dependent for any, even a prospective existence, upon events which perhaps never may occur. Of this description are an heir apparent's pretensions. (Moth v. Frome, Ambler, 394.) A pension to a soldier, who may die the moment after bankruptcy. Pay to an officer. Legacy to a bankrupt's wife, on the contingency of her surviving another person. (Krumbhaar v. Burt, 2 Wash. C. C. Rep., 406.) 2. The lien of a tradesman, who has done work to a vessel. (Shoemaker v. Norris, 3 Yeates, 392.) 3. Torts which require an action in a personal form. (Shoemaker v. Keeley, 1 Yeates, 245; Benson v. Flower, Sir T. Jones, 215.) This is confined to mere personal wrongs, not growing out of property, for there the assignees take, even though the injury be accompanied with violence. (Eden's B. L., 235.) Whatever does not come within one of these three exceptions, passes. Hence, almost every possible variety is to be found in the English cases, which are frequent, because of a continuance of bankrupt laws for a long series of years. (1 Cook B. L., 290, 365; 3 T. R., 88; 2 Vern., 432; 19 Ves., 432.) It was decided in England, nearly a century ago, that the insurer had the plainest equity in the world, to claim the proceeds of prizes taken under letters of reprisal, after they had paid the original owners. (Randal v. Cochran, 1 Ves., Sen., 98.) The bankrupt law of the United States makes express provision for the transfer of equitable as well as legal interests. Chief Justice Kent recognizes our principle in its largest extent, as to the substitute for the property, while he asserts that *there [*200 was no existing hope of recovery as to the property itself. (Gracie v. N. Y. Ins. Co., 8 Johns. 245.) The bankrupt law of the United States, in principle and policy is the same with the British statutes on the subject. In terms, so far as it applies to the present object, there is no difference. The deficiency is supposed to exist, 1. In the absence of the phrase of the statute (13 Eliz., c. 7) giving to the commissioners power "over all such interest in lands, as the bankrupt may lawfully depart withal." But this leaves the question exactly where it found it; as we are upon the very inquiry whether this be such a thing as he may lawfully depart withal. And it is more than doubtful, whether the phrase would apply to the kind of interest now in contemplation. 2. In the supposed non-application of the 18th section, which contains the words possibilities of profits. It is supposed that this clause is introduced, not for the purpose of conveying the thing contemplated, but merely to discover anything which may fall in prior to the certificate. It is apprehended that there could be no object in a discovery, except to transfer; and it matters not whether the transfer is made while the object is remote, or is deferred until beneficial possession can accompany the conveyance. And anything falling in, would become property; and under that name, must then and at all times be disclosed. 3. In the absence of the general expression in the statute, 6 Geo. IV., c. 16, "That this act shall be construed beneficially for creditors." That provision is not necessary for the present object, which is attained by a construction founded on a mere ordinary and inherent policy of a bankrupt system. The result is reached by Lord Chief Justice Dallas, in an opinion delivered at Hilary term, 59 Geo., III, several years before the statute referred to had any existence. (Clark v. Calvert, 8 Taunt., 742.) Bankrupt laws are supposed to place the assignees in the room of the bankrupt, in the same situation," without reserve. (Cassell v. Carroll, 11 Wheat., 152.) The interest in question, however, is plainly to be distinguished from a mere possibility; which is "an uncertain thing that may or may not happen." (2 Lill. Abr., 336.) An heir presumptive or apparent, may have an expectation, but no right; for, the ancestor |