John Conard v. the Atlantic Insurance Company New York

• Decision Date: 01 January 1828
• Citation: 7 L.Ed. 189,1 Pet. 386,26 U.S. 386
• Parties: JOHN CONARD v. THE ATLANTIC INSURANCE COMPANY NEW YORK
• Court: U.S. Supreme Court

26 U.S. 386

1 Pet. 386

7 L.Ed. 189

JOHN CONARD v. THE ATLANTIC INSURANCE COMPANY NEW YORK.

January Term, 1828

[Syllabus from pages 386-388 intentionally omitted]

THIS was an action of trespass brought in the Circuit Court for the district of Pennsylvania, by the Atlantic Insurance Company of New-York, against John Conard, the Marshal of the district of Pennsylvania, for taking and carrying away certain teas, imported from Canton into the port of Philadelphia, on board the ships Addison and Superior. Pleas the general issue, and a special justification under a fi. fa. against the goods as the property of Edward Thomson. The suit was instituted, and tried under an agreement, which is recited in the following bond.——

Know all men by these presents, that we, the Atlantic Insurance Company of New-York, are held, and firmly bound, unto the United States of America, in the sum of forty-two thousand dollars, lawful money of the United States of America, to be paid to the said United States of America, their certain Attorneys, Successors, or Assigns, to which payment, well, and truly to be made, and done, we bind ourselves, and our successors, firmly by these presents, sealed with out seal of incorporation, and dated this ninth day of October, in the year of our Lord, one thousand eight hundred and twenty-six.

Whereas, the goods and merchandise described in an invoice, a copy of which is annexed, imported in the ship Addison, from Canton, safely arrived at the port of Philadelphia, have been levied on by the Marshal of the Eastern District of Pennsylvania, by virtue of an execution on a judgment in favour of the United States, against Edward Thomson, of Philadelphia, as the property of the said Edward Thomson; and, whereas, the Atlantic Insurance Company of New-York, claim to be the owners in law, or equity, of the said goods, and actually hold the bills of lading and invoice thereof; under which the said goods have been duly entered at the Custom House, and the duties thereon, secured to be paid according to law. And, whereas, it has been agreed by, and between, the Secretary of the Treasury, in behalf of the United States, and the said Atlantic Insurance Company, that a suit shall be instituted by the said named company, against the said Marshal, in which the sole question to be tried, and decided, shall be, whether the United States, or the said Atlantic Insurance Company are entitled to said goods, and the proceeds thereof; and, whereas it has been further agreed, that the said goods shall be delivered to the said Atlantic Insurance Company, without prejudice to the rights of the United States, under the said execution or otherwise; and that they shall sell and dispose of the same, in the best manner, and for the best price they can obtain therefor, and for cash, or upon credit as they may judge expedient; and that the moneys arising from the sales thereof, deducting the duties and all customary charges, and commissions on such sales, shall be deposited by the said Atlantic Insurance Company, as soon as received from, and after the sale, in the Bank of the United States, to the credit of the President of said bank, in trust, to be invested by the said President of the said bank, in the stock of the United States, in the name of the said President in trust, so to remain, until it shall judicially and finally be decided to whom the said goods or the proceeds thereof, do in right, and according to law belong; and on the further trust, that whenever such decision shall be made, the said President of the said bank, shall deliver the said moneys, or transfer the said stock to the party in whose favour such decision shall be made. And, whereas, in pursuance of the said agreement, the said goods have been this day delivered to the said Atlantic Insurance Company of New-York, it being understood and agreed that such delivery of the goods, shall not prejudice any existing right of the said company.

Now the condition of this obligation is such, if the said Atlantic Insurance Company, of New-York, shall comply with the said arrangements, and well, and truly sell, and dispose of the said goods, and cause the moneys arising from the sales thereof, deducting therefrom the duties, charges, and commissions, as aforesaid, to be deposited in the bank, in trust, according to the true intent and meaning of the above recited agreement, and for the purposes therein set forth. This obligation to be void, otherwise to be, and remain in full force and virtue.

(Signed,) ARCH. GRACIE, Prest. [L. S.]

Attest, GEO. B. RAPELYE, Secretary of the Atlantic Insurance Company of New-York.

The facts as they appeared by the record were as follows:—On the 21st June 1825, the plaintiffs below, lent to Edward Thomson the sum of 21,000 dollars, upon respondentia, by the Addison, for which the following bond was executed and delivered to the company:——

Know all men by these presents, that we, Edward Thomson, of the city of Philadelphia, Edward H. Nicoll, Francis H. Nicoll, and Floyd S. Bailey, of the city of New-York, are held and firmly bound unto the Atlantic Insurance Company, of New-York, in the sum of forty-two thousand dollars, lawful money of the United States of America, to be paid to the said the Atlantic Insurance Company of New-York, their certain attorney, successors, or assigns, to which payment, well and truly to be made, we do bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this twenty-first day of June, in the year of our Lord one thousand eight hundred and twenty-five.

Whereas the said the Atlantic Insurance Company of New-York, have this day lent and advanced to the above named Edward Thomson, Edward H. Nicoll, Francis H. Nicoll, and Floyd S. Bailey, the sum of twenty-one thousand dollars, lawful money of the United States of America, upon the goods, wares, merchandise, and specie, to that amount laden or to be laden, on board the American ship, called the Addison, of Philadelphia, whereof Hidelius is master, or which may be laden on account of the said Edward Thomson, Edward H. Nicoll, Francis H. Nicoll, and Floyd S. Bailey, on board the said vessel, at any time during her intended voyage hereinafter mentioned.

And whereas the said vessel is now bound on a voyage at, and from Philadelphia to Canton, and at and from thence back to Philadelphia, with the usual privileges for trade and refreshments.

And whereas the said the Atlantic Insurance Company of New-York, are content to stand and bear the risks against which the said company usually insure by their cargo policies, on the said sum so lent and advanced on the said goods, wares, merchandise, and specie, laden or to be laden on board of the said vessel as aforesaid, during the said voyage, so as the same do not exceed the term of twelve calendar months, to be computed from the day of the date of the bill of lading, viz: the twenty-first day of April 1825.

Now the condition of this obligation is such, that if the said ship laden with the said goods, wares, merchandise, and specie, do and shall, with all convenient speed, proceed and sail on the said voyage from Philadelphia to Canton, and at, and from thence back to Philadelphia, and return and come to Philadelphia, having on board the above stipulated amount in value, in specie or merchandise, as the case may be, on the respective passages, both outward and homeward, to end her voyage there, by or before the end or expiration of twelve calendar months, to be computed from the date aforesaid, and that without deviation, (the dangers and casualties of the seas excepted;) and if the above bounden Edward Thomson, Edward H. Nicoll, Francis H. Nicoll, and Floyd S. Bailey, or either of them, or either of their heirs, executors, or administrators, shall, and do well, and truly pay, or cause to be paid, at the city of New-York, to the above named the Atlantic Insurance Company of New-York, their attorney, successors, or assigns, the full sum of twenty-one thousand dollars, lawful money as aforesaid, immediately upon the first and next return and arrival of the said ship, at the port of Philadelphia, or at and upon the end and expiration of twelve calendar months, to be computed as aforesaid, whichever shall first happen, together with the sum of two thousand two hundred and five dollars, lawful money as aforesaid, that being the stipulated marine interest and premium, on the said loan: or if the said Edward Thomson, Edward H. Nicoll, Francis H. Nicoll, and Floyd S. Bailey, or either of them, their, or either of their heirs, executors, or administrators, shall and do immediately upon the first and next return and arrival of the said vessel, at the port of Philadelphia as aforesaid, provided such return and arrival happen within the space of twelve calendar months, to be computed as aforesaid, give security satisfactory to the said the Atlantic Insurance Company of New-York, to pay at the city of New-York, to the said the Atlantic Insurance Company of New-York, their successors or assigns, the said sum of twenty-one thousand dollars, together with the said sum of two thousand two hundred and five dollars, within three months from the time of such return and arrival, with lawful interest thereupon, from the time of such return and arrival, and shall, and do well, and truly pay the same accordingly, at the expiration of the said three months; or if, in the said voyage, and before the end of the said twelve months, to be computed as aforesaid, a total loss of the said goods, wares, merchandise, and specie, by the risks against which said company usually insure by their cargo policies, shall unavoidably happen, and the said Edward Thomson, Edward H. Nicoll, Francis H. Nicoll, and Floyd S. Bailey, their heirs, executors, or administrators, shall, and do well, and sufficiently abandon, transfer, and assign, to...