By the civil law, a lien or privilege is expressly given to carriers, which is not lost by alienation.

On arrival at Calcutta, the charterers did not furnish an entire cargo, and procured some shipments on freights; among others, one to Augustine Wills, of Boston, for which the master signed bills of lading in the usual form. On October 12th, 1857, the ship arrived in Boston, and soon after commenced discharging.

In the meantime Tuckerman Townsend & Co. had passed over the bills of lading of the merchandise on freight to the libelants, in part settlement of the charter money, and Mr. Sears, one of the libelants, undertook to attend to the collection of the freight.

At this time Mr. Wills was sick, and his business was attended to by the claimant, his brother and agent. Mr. Wills died Nov. 2d, and Nov. the claimant was appointed his administrator.

All the goods consigned to Augustine Wills were delivered to and taken possession of by the claimant, as his agent, before the death of said Augustine; and after his death the larger portion was discharged, at the request of the claimant, into the ship Cyclone, bound to London. The remainder of the goods was discharged and delivered into the custody of the claimant or his agent, and by them conveyed to the custom house stores, and then entered in bond in the name of Augustine Wills.

Nothing was said at any time, by the owners of The Bold Hunter, of their intention to hold the goods, or any port thereof, for the freight, but the goods were all discharged and delivered without qualification. Before the death of Mr. Wills, the claimant paid said Sears $5,000 on account of the freight.

The libelants seek to enforce a lien against the goods, nothwithstanding the delivery for the remainder of the freight.

Messrs. Charles G. Loring and F. C. Loring, for appellants:

1. In the present case, the delivery was made under an agreement that the lien for freight should not be affected thereby.

The delivery was made under an agree ment" having two parts: First. "Charter, payable, one half in five, balance in ten days after discharge in Boston. Second. "Said credit, in payment of charter, not to impair ship owner's lien on cargo for freight."

The obvious meaning would seem to be, that the charterers were to have five and ten days in which to pay the freight after the cargo was delivered to them and before they could be called upon to pay it; and that if the freight was not paid in that time, the ship owner should have the same right to enforce his lien upon it as if delivery had not been made.

2. By the maritime law, the ship owner has a lien or privilege upon the goods for the freight, which exists independently of possession and is not necessarily lost by delivery to the debtor.

This law is derived principally from the civil

1 Cush. Domat, 684.

This privilege is a maritime lien in its proper and most effectual sense; it binds the goods, follows them after delivery, and affects them so long as they remain in the debtor's hands, and may be enforced by an action in rem.

Valin, Com. on Art., 24: 2 Boulay Paty, 479; Abb. Shipp., 127, 284; The Freeman, 59 U. S. (18 How.), 188; The Yankee Blade, 19 How., 90; Dupont de Nemours v. Vance, 60 U. S. (19 How.), 171.

As the agreement expressly provides for a credit to be given, and that the privilege shall not be impaired thereby, the original parties to the contract would seem to be estopped from setting up the mere delivery as a waiver of the privilege.

Nor is it plain that the libelants might not have followed the goods to London and enforced their lien there, before they were sold.

But a portion of the cargo, much more than sufficient to satisfy the entire freight, remained and was to be stored in Boston, and the libelants had a right to resort to that for payment of the whole. This is familiar and well settled law.

Abb. Ship., 377; Ang. Carr., 360; Soddergreen v. Flight, cited in 6 East, 622; Boggs v. Martin, 13 B. Mon., 239; Bernal v. Pim, 1 Gale, 17.

The jurisdiction of a court of admiralty is not that of a court of equity; but, so far as its jurisdiction extends, it is administered on the same principles. It is, as has been said, the "chancery of the seas.'

"

Among the familiar principles of equity law is this, that an agreement for a lien binds the thing and creates a trust, as between the parties. Fletcher v. Morey, 2 Story, 565.

In this case there is an express agreement that the cargo should be bound for the payment of the freight; and another that the credit, which was to be given for the payment of the freight, should not impair this lien.

The consignee is not an immediate party to this contract, had notice of it, and insisted upon and had the benefit of the credit. He cannot, therefore, plead ignorance of the contract, or allege that the lien was impaired by reason of delivery according to it.

The master had no authority to sign a bill of lading, or enter into any contract contrary to the terms of the charter-party (Gracie v. Palmer, 8 Wheat, 608), nor is there pretense that the master of this vessel undertook to alter the terms of the charter-party. These have never been changed in any respect. The persons under whom the respondent claims, expressly assented. As he has had the benefit of it, he is under obligation to perform the other portion of the contract, and is estopped from setting up the delivery as waiver of the lien.

In equity, he is bound by the contract, and the lien would be enforced against him as a trustee, without regard to possession.

Collyer v. Fallon, 1 Turn. & R., 469; Alexander v. Heriot, 1 Bailey, ch. 223; Welsh v. Usher, 2 Hill (S. C. Ch.), 167; Read v. Gail| lard, 2 Desau., 552; Dow v. Ker, Speers Ch.,413.

4. If, however, it should be adjudged that the lien for freight is not maritime, or is excepted from the general rule that maritime liens do not depend upon possession, it will not be conclusive against the claims of the libelants-beccause it will be found under similar circumstances, courts of common law have recognized and enforced the lien, although there has been no possession.

The facts in the case show an agreement for lien; an agreement that credit should be given for the payment of freight; an agreement that this credit should not impair the lien.

Wilson v. Kymer, 1 Maule & S., 167; Bigelow v. Heaton, 6 Hill, 43; 4 Den., 496; Hussey v. Thornton, 4 Mass., 405.

upon possession, nor was it lost by alienation. Now, as in the other part of their argument, the fallacy of the appellants consists in confounding discharge with delivery, so here the fallacy consists in confounding the carrier's lien of the common law and of modern commerce, with the carrier's privilegium of the civil law. All the cases show that the carrier's lien for freight is possessory-a mere right to hold. Not to go out of our own reports, the cases from Sumner's Rep., already cited, proceed upon this postulate.

See, also, Perkins v. Hill, 2 Wood. & M., 158; Raymond v. Tyson, 58 U. S. (17 How.), 53; Pars. Mer. L., 345, note.

The privilege of the civil law was a right of priority or preference, as between creditors, which followed the goods and depended in no respect upon possession. Some maritime liens are like the priviligeum of the civil law; such, for instance, as the lien for supplies and materials. The distinction is referred to by Walworth, Chancellor, in Van Bokelin v. Ingersoll, 5 Wend., 315.

Mr. Chief Justice Taney delivered the opin

Augustine Wills was no party to the charter party, but was merely a sub-freighter, like the rest of the consignees, and the only contract to which he was a party was the bill of lading under which the goods were shipped to him. Wills & Co. were no more his agents than they were the agents of any other party to whom goods were shipped, i. e., merely for the purpose of forwarding the goods, nor do they profess to act as agents. It is agreed that Wills & Co. knew there was a charter; but there is no such evidence as to Augustine Wills. On the contrary, it is clear that he could not actually have known that such was the fact. He could not even know on board what vessel the goods were shipped, until he had received advice of the shipment from Calcutta. The sub-freighter or consignee is not bound by the conditions of the charter party, his bill of lading not referring thereto.

Abb. Ship.,6 ed., marginal, pp. 287, 288; Paul v. Birch,2 Âtk., 621; Mitchel v. Scaife, 4 Camp., 298; Faith v. East India Co., 4 B. & Ald., 630; Small v. Moates, 9 Bing., 574; Shepard v. De Bernales, 13 East, 570.

But the exigencies of their case have driven the appellants to the proposition, that "by the maritime law, the ship owner has a lien or privilege upon the goods for the freight; that this lien exists independently of possession, and is not necessarily lost by delivery to the debtor." The maritime law, it is said, is derived from the civil law; the civil law gave a privilege to the carriers and this privilege did not depend

before us. Augustine Wills was not a party to it, and it is not material to inquire whether he did or did not know of its existence and contents; for there is nothing in it to prevent Wills & Co., the sub-charterers, or Augustine Wills, the consignee, from entering into the separate and distinct contract stated in the bill of lading, and the assignees took the rights of Wills & Co. in this contract, and nothing more. The circumstance that it came to hands of the ship owners by assignment from the sub-charterers, who knew and were bound by all the stipulations of the charter-party, cannot alter the construction of the bill of lading, nor affect the rights or obligations of Augustine Wills.

Undoubtedly the ship owner has a right to retain the goods until the freight is paid, and has, therefore, a lien upon them for the amount; and, as contracts of affreightment are regarded by the courts of the United States as maritime contracts, over which the courts of admiralty have jurisdiction, the ship owner may enforce his lien by a proceeding in rem in the proper court. But this lien is not in the nature of a hypothecation, which will remain a charge upon the goods after the ship owner has parted from the possession, but is analogous to the lien given by the common law to the carrier on land, who is not bound to deliver them to the party until his fare is paid; and if he delivers them, the incumbrance of the lien does not follow them in the hands of the owner or consignee. It is nothing more than the right to withhold the goods, and is inseparably associ ated with his possession, and dependent upon it.

The lien of the carrier by water for his freight, under the ordinary bill of lading, although it is maritime, yet it stands upon the same ground with the carrier by land, and arises from his right to retain the possession until the freight is paid, and is lost by an un

and convenience of commerce, both as to the ship owner and the merchant.

conditional delivery to the consignee. It is suggested in the argument for the appellant, that, as a general rule, maritime liens do not depend on possessson of the thing upon which the lien exists; but this proposition cannot be maintained in the courts of admiralty of the United States. And, whatever may be the doctrine in the courts on the continent of Europe, where the civil law is established, it has been decided in this court that the maritime lien for a general average in a case of jetti son, and the lien for freight, depend upon the possession of the goods, and arise from the right to retain them until the amount of the lien is paid. Cutler v. Rae, 7 How., 729; Dupont de Nemours v. Vance, 19 How., 171.

In the last mentioned case, the court, speak ing of the lien for general average, and refering to the decision of Cutler v. Rat, on that point, said: "This admits the existence of a lien arising out of the admiralty law, but puts it on the same footing as a maritime lien on cargo for the price of its transportation, which, as is well known, is waived by an authorized delivery without insisting on payment."

After these two decisions, both of which were made upon much deliberation, the law upon this subject must be regarded as settled in the courts of the United States, and it is unnecessary to examine the various authorities which have been cited in the argument. But it may be proper to say, that while this court has never regarded its admiralty authority, as restricted to the subjects over which the English courts of admiralty exercised jurisdiction at the time our Constitution was adopted, yet it has never claimed the full extent of admiralty power which belongs to the courts organized under, and governed altogether by, the principles of the civil law.

But courts of admiralty, when carrying into execution maritime contracts and liens, are not governed by the strict and technical rules of the common law, and deal with them upon equitable principles, and with reference to the usages and necessities of trade. And it often happens that the necessities and usages of trade require that the cargo should pass into the hands of the consignee before he pays the freight. It is the interest of the ship owner that his vessel should discharge her cargo as speedily as possible after her arrival at the port of delivery. And it would be a serious sacrifice of his interests if the ship was compelled, in order to preserve the lien, to remain day after with her cargo on board, waiting until the consignee found it convenient to pay the freight, or until the lien could be enforced in a court of admiralty. The consignee, too, in many instances, might desire to see the cargo unladen before he paid the freight, in order to ascertain whether all of the goods mentioned in the bill of lading were on board, and not damaged by the fault of the ship. It is his duty, and not that of the ship owner, to provide a suitable and safe place on shore in which they may be stored; and several days are often consumed in unloading and storing the cargo of a large merchant vessel. And if the cargo cannot be unladen and placed in the warehouse of the consignee, without waiving the lien, it would seriously embarrass the ordinary operations

It is true, that such a delivery, without any condition or qualification annexed, would be a waiver of the lien; because, as we have already said, the lien is but an incident to the possession, with the right to retain. But in cases of the kind above mentioned, it is frequently, perhaps more usually, understood between the parties, that transferring the goods from the ship to the warehouse shall not be regarded as a waiver of the lien, and that the ship owner reserves the right to proceed in rem to enforce it, if the freight is not paid. And if it appears by the evidence that such an understanding did exist between the parties, before or at the time the cargo was placed in the hands of the consignee, or if such an understanding is plainly to be inferred from the established local usage of the port, a court of admiralty will regard the transaction as a deposit of the goods, for the time, in the warehouse, and not as an absolute delivery; and, on that ground, will consider the ship owner as still constructively in possession, so far as to preserve his lien and his remedy in rem.

But in the case before us, there is nothing from which such an inference can be drawn. The goods were delivered, it is admitted, generally, and without any condition or qualification. Upon such a delivery there could be neither actual nor constructive possession remaining in the ship owner; and, consequently, there could be no right of retainer to support his lien.

The decree of the Circuit Court, dismissing the libel, must, therefore, be affirmed.

596: 2 Cliff., 15; 1 Brown, 153, 191, 223; 2 Low., 95; Cited 5 Wall., 493, 555; 7 Wall., 636, 642; 14 Wall., 3 Am. Rep., 737 (43 N. Y., 554).

BEN'J RUFFNER ET AL., THE STATE BANK OF INDIANA AND THE CHICAGO RAILROAD COMPANY, Appts.,

v.

NATHANIEL B. HOGG;

AND

NATHANIEL B. HOGG, Appt.,

V.

BENJ'N RUFFNER ET AL., THE STATE BANK OF INDIANA AND THE CHICAGO RAILROAD COMPANY.

(See S. C., 1 Black 115-121.) Usury, what is-payment of larger sum, for credit-parol evidence cannot contradict contract.

To constitute usury, there must either be a loan and a taking of usurious interest, or the taking of more than legal interest for the forbearance of a debt or sum of money due.

If A proposes to sell to B a tract of land for $10,stallments, and if B prefers to pay the larger sum 000 in cash, or for $20,000 payable in ten annual into gain time, the contract cannot be called usurious.

NOTE.-Usury. See note to Levy v. Gadsby, 7 U. 8. (3 Cranch), 180.

payment was made on the day. But counsel advised that this would be construed a mortgage, in whatever form of words it might be drawn. Ruffner being unable to furnish such security as was required, this agreement was not signed or executed. Proposals were then made to purchase for a larger consideration, to

force of the Act of 1851, cannot order a second patent to issue for a portion of Sutter's grant. Such judgment could have no effect against the government, and as between Sutter and the petitioners, would be a nullity, being prohibited by the Decided Dec. 23, 1861.

15th section of the Act of 1851.

Argued Dec. 6, 1861.

contract referred to.

Now, the hearsay testimony of witnesses, who relate what they "understood "from conversations with the parties, or may have misunderstood to be the contract between them, and their inference, because the parties had a "settlement," that, therefore, the first terms proposed, but not accepted, amounted to the ascertainment of a debt due, cannot be received to contradict the written contract of the parties and the testimony of witnesses cognizant of the whole antecedent history of the transaction. Nor is there any irreconcilable discrepancy between their impressions or "understandings," and the written agreements and other testimony. They construed the "settlement." of the difficulties, which had long existed between the parties, to mean a balance of accounts of money due from one party to the other and, consequently, inferred that the increased amount of the securities was for usu rious interest for the forbearance of its payment. This was but the usual error of arriving at a false conclusion by the use of equivocal or ambiguous terms.

The decree of the court below is, therefore, erroneous, in so far as it is affected by the assumption that the contract was usurious.

The decree of the Circuit Court is reversed, and record remitted, with directions to reform their decree in conformity with this opinion, and have such further proceeding as to justice and equity may appertain.

Cited-1 Biss., 444; 21 Ind., 135; 28 Ind., 439; 14 Am. Rep., 137 (23 Gratt., 225).

THE UNITED STATES, Appt.,

v.

CHAS. COVILLAND ET AL.

(See S. C., 1 Black, 339-342.) Confirmation of Mexican title to original grantee -intervention by assignees-second patent, when invalid under Act of 1851.

A confirmation in the name of the original grantee of Mexican land devesting the legal title of the United States, is binding on the government and on the assignees.

PPEAL from the District Court of the United States for the Northern District of CaliCovilland and others filed their petition before the Board of Land Commissioners of California, asking confirmation of two parcels of land, the title to which they derived from Sutter. The claim was confirmed by the Commissioners, and the United States District Court, on appeal, affirmed this decree of confirmation. The United States appealed to this court.

The point on which the case turned is stated by the court.

Messrs. Edward Bates, Atty-Gen., and E. M. Stanton, for appellant.

Mr. J. J. Crittenden, for appellee.

Mr. Justice Catron delivered the opinion of the court:

Covilland and four others petitioned to have confirmed to them two tracts of land, as joint owners, assuming to derive title from John A. Sutter. His claim was confirmed for eleven leagues by the decision of this court, in 1858, and which judgment is reported in 21 How., 170. It appeared, in that case, that Sutter had assigned to others a great portion of his original grant; nevertheless, the suit against the United States seeking a confirmation was prosecuted in his name, regardless of that fact.

That a confirmation in the name of the original grantee, devesting the legal title of the United States, is binding on the government and on the assignees, is the established doctrine of this court. It was so held in the case of U. S. v. Percheman, 7 Pet., 56, which decision has been adhered to, and which was recognized in U. S. v. Sutter, 21 How., 170, 182, of which this case is, in fact, a part.

To this course of decision the courts adjudicating titles to lands situate in California are requested to conform by the 11th section of the Act of March 3d, 1851, ch. 41 (9 Stat., 631); nor can their decisions affect, injuriously, the rights of assignees. The 15th section of the Act so provides.

The decree made by this court in 1858, in favor of Sutter, remanded the proceeding to the Surveyor General's office in California, to have a survey made of the land conformably to our decree, to the end of having a patent founded on the survey, devesting the title of the United States. In executing the survey, Sutter's assignees may intervene and protect their rights, acording to the Act of June 14th, 1860, ch. 128 (12 Stat., 33).

When the survey is finally completed, and a patent issued to Sutter, his assignees may intervene and protect their rights against him in the courts. But the extraordinary tribunals, proceeding by

tribunals, proceeding by force of the Act of 1851, cannot order a second patent to issue for a portion of Sutter's grant. Such judgment could have no effect against the government; and as between Sutter and the petitioners,