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of him, to entitle his wife to dower as against the mortgagee.” This is the well established doctrine on the subject.'

The appellant insists, that the principle, which excludes dower in the case of a momentary seizin, applies only where the grantor acts in carrying out a naked trust; but this position is not sustained by the authorities. In the case of M'Cauley v. Grimes, the court say, "perhaps there is no general rule, in strictness, that in cases of instantaneous seizin, the widow shall or shall not be entitled to dower ;” and, again, “ where a man has the seizin of an estate beneficially for his own use, the widow shall be endowed.” What

be a beneficial seizin in the husband, so as to entitle his widow to dower, may be a matter of controversy, and must lead to some uncertainty. But in the language of chancellor Kent, where a mortgage is given by the grantee, at the same time the conveyance of the land is executed to him, there is no such beneficial seizin in him as to give a right to dower. The incumbrances, in the present case, it is believed, exceed the value of the estate ; and this being the case, the grantees could in no sense be said to be beneficially seized, so as to sustain the claim of the complainant. Upon the whole the decree of the circuit court is affirmed.

may

Holbrook o. Finney, 4 Mass. Rep. 566; Clark o. Munroe, 14 Mass. Rep. 352; Stow v. Tift, 15 Johns. Rep. 485.

: 2 Gill & Johns. Rep. 324.

In the District Court of the United States, for the District of

Maine. February, 1841.

THE DAWN.

1. The libellant shipped for a voyage from Boston to Turk's island. The

ship soon after leaving port was so much damaged by the fortune of the seas, that the master, for the safety of the lives of the crew, put into Ber. muda, where a survey was called, and she was condemned and sold as a wreck, and her crew discharged. Wages were paid to the libellant until he arrived at Berinuda. By his libel he claimed either the two months wages allowed to seamen on the sale of a vessel in a foreign port and the discharge of the crew, by the act of congress of February, 1803, chap. 63; or a sum in addition to his wages to pay his expenses home.

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2. Ruled, that the act of congress applies only to the case of a voluntary sale

of a vessel, and not to a sale rendered necessary by misfortune, and that the libellant was not entitled to the statute allowance, but was entitled to a sum in addition to his wages to defray the expenses of his return home, to

be paid from the proceeds of the sale of the vessel. 3. In case of shipwreck, the seamen are by the maritime law bound to

remain by the vessel and exert themselves to save all that is possible of the

ship and cargo. 4. When they do this they are entitled to their full wages, without deduction,

against the materials which they save of the ship, if enough is saved to pay

them. 5. And they are entitled to a further reward in the nature of salvage against

the whole mass of property saved. 6. Their claim is not as general or volunteer salvors, nor are they entitled to

an equally large salvage ; but they are entitled to a reasonable allowance, pro opera et labore, according to the circumstances of the case and the

merits of their services. 7. When the disaster happens in foreign parts this ought not to be less than

the expenses of their return home.

6

This case was before the court several terms ago, and is reported in Ware's Reports, 425. After the opinion was then delivered, the counsel for the respondent moved the court to suspend the decree, to enable the party to offer further evidence to show the actual condition of the vessel, when she arrived at Bermuda. Under the circumstances of the case, the court allowed the motion. The case was now presented on the new evidence. The material facts upon the whole case were as follows. The libellant shipped on board the brig Dawn, at Boston, November 26, 1836, as mate, for a voyage to Turk’s island, for wages at twenty-five dollars a month. Soon after the brig left port she encountered violent gales, by which she was so much damaged in her hull and rigging, as to be incapable of continuing the voyage, and the master, for the safety of the lives of the crew, bore away for Bermuda, where she arrived on the 28th of December. The master then made his protest, and applied for a survey. Commissioners were appointed for that purpose by the governor, who, after an examination, reported, that from the great damage which the brig had received in her spars and rigging, and especially from the disabled state of her hull, connected with her great age, she was unfit for sea and

unworthy of repair ; and she was subsequently sold as a wreck. The additional evidence, now introduced, went to confirm the report of the surveyors and to prove the ruinous condition of the vessel, and to show further the great expenses of the repairs, which would be required to fit her for sea.

The crew were discharged and paid their wages up to the time of the discharge. The libellant claimed in addition two months wages allowed by the act of congress of February, 1803, sect. 3, upon the sale of a ship and the discharge of her crew in a foreign port, or upon the discharge of a seaman in a foreign country with his own consent; and if under the circumstances of this case he was not entitled to claim under the statute, an alternative claim was set forth in the libel for a reasonable compensation, in addition to his wages, in the nature of salvage for his extra labor and services in saving the vessel and to pay his expenses home.

The case was argued by C. S. Daveis for the libellant, and T. A. Deblois for the respondent.

Ware, district judge. I do not think it necessary on this occasion to

the claim for the statute allowance of two months' additional wages, which are directed to be paid to the consul for the seamen's use on the sale of a vessel in a foreign port, or when a seaman is discharged in a foreign country with his own consent. When this case was before the court at a former term, that question was fully considered, and the conclusion to which my judgment was brought by that examination, was that the statute applied only to the case of a voluntary sale of the vessel, and to a strictly voluntary discharge of a mariner, and not to a sale or discharge rendered unavoidable by an imperious and overruling necessity. But when a vessel is sold in a foreign port, the case is within the words of the statute, and if the owners would exempt themselves from its operation it belongs to them to show that the sale was involuntary on their part. As the evidence then stood, it did not appear to me that the necessity of the sale was sufficiently established by the proof; but, under the peculiar circumstances of the case, it seemed to be reasonable to suspend the decree, and allow the owner to offer further evidence to that point.

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The evidence now produced does in my opinion satisfactorily show that the sale was, in the reasonable meaning of the word, a sale of necessity. Not that it was physically impossible to repair the vessel and proceed on the voyage ; for it is always possible to repair or rebuild a vessel, while any part of the hull remains. But the damages were so extensive, and the expense of the repairs would have been so considerable, that it was beyond question greatly for the interest of those, on whom the loss must ultimately fall, to abandon the voyage and sell the materials preserved for the most they would bring. A sale is within the mercantile and reasonable sense of the word necessary, when the vessel cannot be repaired, but at a great sacrifice of the interests of the owners. And when a voyage is broken up for such cause, the seamen are not properly discharged, but the whole enterprise is brought to a premature conclusion by a fortuitous event, for which neither party is responsible.

The other question raised by the pleadings in this case is — whether upon a shipwreck and loss of the vessel in a foreign country, the seamen, who have remained by the ship and faithfully performed their duty to the last, can upon the principles of the maritime law claim a compensation, out of the property which they save, beyond their stipulated wages up to the time, when their connection with the ship is finally dissolved, sufficient to pay their expenses home. This question has been very ably and elaborately argued on both sides; and the authorities bearing upon it have been widely examined. But with all the researches of counsel no adjudged case has been found, in which the question has been directly and formally decided.

It is contended by the counsel for the libellant that this claim is founded on an ancient principle of the maritime law of Europe, incorporated into the earliest digests of the law, and recommended as well by the dictates of justice and humanity as by an enlarged and enlightened public policy; that if it is not directly sanctioned by any judicial precedents, neither are there any by which it is directly negatived; but that there are cases in which a compensation in the nature of salvage may be allowed beyond the amount

of wages due, is fairly inferrible from the doctrines of many of the adjudged cases; and it is in fact but a just application of the general principle of the marine law, which studiously connects the interest of the crew with the safety of the vessel and cargo. On the other side, it is argued that the claim cannot be supported as one flowing from the contract, all rights under that being satisfied by the payment of wages up to the time when the contract was dissolved by an accident of major force; that it cannot be main. tained as a salvage reward, because the ship's company can, it is said, in no case claim as salvors, being bound by their contract to use, on these melancholy occasions, their utmost exertions for the preservation of the ship and cargo for their stipulated hire ; and the silence of our jurisprudence on a question, which must have frequently been presented to the court, has been strongly urged as a proof that no such principle, as that contended for in behalf of the libellant, is acknowledged by the maritime law of this country. And it is further contended, admitting the rule of the maritime law to be that upon a shipwreck in foreign parts, the crew are entitled to claim against the savings from the wreck a sum sufficient to pay their expenses home, that this rule is superseded in this country by the acts of congress for the relief of destitute mariners in foreign countries, requiring the consuls of the United States to provide for their return at the public expense. Such I understand to be the general tenor of the arguments at the bar.

I agree with the counsel for the respondent that by the maritime law, as it is received in this country, the seamen are bound to remain by the wreck, and contribute their utmost exertions to rescue as much as possible from the violence of the elements, so long as there is a reasonable probability of saving any thing without too much hazard of life. It is true that a different view is taken of the obligations of the crew by the most distinguished maritime jurists of France. Valin says, that in case of shipwreck the seamen are at liberty to abandon the ship, although he admits that his opinion is in opposition to the decision of the judgments of Oleron and the ordinance of the Hanse Towns. The reason, he says, is that in this case the owner is under no personal obligation

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