[Hepburn v. Dubois.]

First, the children of William Fearon and Abel Fearon.

And second, when the general division was made between the two families, the moiety allotted the Abel branch was to be divided between them.

Now, how were the attorneys to obtain the actual seisin and possession of their respective shares, without an equal partition? After they had got "the actual seisin and possession of their respective shares," they had power to sell and convey "their respective shares," and conyert them into money. Again: they had power to enter into the possession, "along with, or without the other heirs." They were to take possession of each and every of their respective parts or shares; and had power expressly given "to do all things necessary for accomplishing the several purposes aforesaid." They were sound principles, that every general power necessarily implies the grant of every matter necessary to its complete execution; and that the true rule of construction is, to effectuate the intention of the parties, if such intention be consistent with law. See 4 Dall. 347; 6 Binn. 149; Sugden on Powers, 459. The deposition of Fox proves that the parties contemplated a division; for he says, "we wrote letters to Mr. Wilson to divide the land:" and it was necessary to make a partition, to enable the attorneys to accomplish the purposes designated in the power.

Mr. Justice BALDWIN delivered the opinion of the Court:

This case was before this Court on a writ of error taken by the plaintiff below, to the district court for the western district of Pennsylvania, at the January term, 1836; and all the questions arising on the record, or made by counsel, were there fully considered. The Court, however, took further time for consideration, and at the term of 1836, delivered their unanimous opinion, reversing the judgment of the district court on the merits of the case, as well on the questions of law as of fact; as will appear in the 10th vol. of Peters' Rep. pages 17, 33. Pursuant to the judgment and mandate there rendered, the case was again tried, and now comes before us on a writ of error by the defendant below, after a verdict and judgment below against him; in the argument, of which every point of law and question of fact which came up and was decided before, has been noticed by counsel now.

As relates to the questions of law arising on the great mass of deeds in the former and present record, they are not varied by any

[Hepburn v. Dubois.]

thing which is now brought up for the first time: the want of any operative act by Mrs. Scarrow, which could confirm the alleged partition of 1825, before the duly acknowledged deed of confirmation by her and her husband in 1832, is not supplied. The counsel of the plaintiff in error have indeed contended, that her deed of 1832, operates retrospectively to validate all the previous acts of her attorneys in fact, from 1811 to 1828. But the law is well settled to the contrary. The deed of a feme covert, conveying her interest in land which she owns in fee, does not pass her interest by the force of its execution and delivery; as in the common case of a deed by a person. under no legal incapacity. In such cases, an acknowledgment gives no additional effect between the parties to the deed; it operates only as to third persons, under the provisions of recording and kindred. laws. The law presumes a feme covert to act under the coercion of her husband, unless before a court of record, a judge, or some commissioner in England, by a separate acknowledgment out of the presence of her husband; and in these states, before some court or judicial officer, authorized to take and certify such acknowledgment. We are bound, therefore, in accordance to what we deem in the former case to be the legal result of all the deeds and facts on the record, to declare, that Mr. Quay had in him such legal right to the premises; on which we then held, and now deliberately hold, to be a scintilla of legal right; which is all that, by the laws of the state, is necessary to entitle the holder of such right to redeem lands sold for taxes.

In urging upon this Court a review of the parol evidence in the record, we think the counsel of the plaintiff in error have asked us to transcend the limits prescribed to our action on questions of fact, by an uniform course of decision from the first organization of this Court, which has been repeatedly defined during the present term, in our opinions, unanimous on the law; though sometimes differing in its application to particular cases. If our past course of adjudication has not sufficed to satisfy the bar, as to what we have considered our most solemn duty; and if it is yet an open question as to what is the line which the law has drawn between those questions of fact cognizable only by the jury below, and questions of law arising on the joint action of the court and jury, in that court whose record we judicially inspect on error; it will be useless to attempt to close it, by any opinion to be delivered in this case.

This Court is committed in language which it neither can nor desires to recall; because that power which we are bound to obey, has

[Hepburn v. Dubois.]

spoken to us, and all the courts in the United States, in terms most imperative.

"The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude; and every encroachment upon it has been watched with great jealousy." "One of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases. As soon as the constitution was adopted, this right was secured by the seventh amendment of the constitution proposed by congress; and which received an assent of the people so general, as to establish its importance as a fundamental guaranty of the rights and liberties of the people. This amendment declares, that 'in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact trial by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.'" .3 Peters, 446.

If this Court can comprehend what these rules are, or promulgate them in intelligible language, they are these:

That where the evidence in a cause conduces to prove a fact in issue before a jury, it is competent in law to establish such fact; a jury may infer any fact from such evidence, which the law authorizes a court to infer on a demurrer to the evidence: after a verdict in favour of either party, on the evidence, he has a right to demand of a court of error that they look to the evidence only, for only one purpose, and with the single eye to ascertain whether it was competent in law to authorize the jury to find the facts which make out the right of the party, on a part, or the whole of his case. If, in its judgment, the appellate court shall hold that the evidence was competent, then they must found their judgment on all such facts as were legally inferrible therefrom; in the same manner, and with the same legal results, as if they had been found and definitely set out in a special verdict. So, on the other hand, the finding of the jury on the whole evidence in a cause, must be taken as negativing all facts, which the party against whom their verdict is given, has attempted to infer from, or establish by the evidence,

On the evidence in the former record, we held that it was competent in law, to make out, and for the jury to find the fact of an offer to refund the taxes, &c., so as to give a right of redemption: on the evidence and finding of the jury in the present record, we

[Hepburn v. Dubois.]

are bound to consider the fact of such offer as established, and to hold the facts so found, to bring the defendant in error within the provisions of the laws of Pennsylvania, on which the case turns.

The judgment of the court below is therefore affirmed, with costs.

This cause came on to be heard on the transcript of the record from the district court of the United States for the western district of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here adjudged and ordered by this Court, that the judgment of the said district court in this cause be, and the same is hereby affirmed, with costs.

VOL. XII.-3 B

ISAAC BRADLIE AND JOHN GIBBONS, PLAINTIFFS IN ERROR v. THE MARYLAND INSURANCE COMPANY.

Insurance. By the well settled principles of law, in the United States, the state of the facts, and not the state of the information at the time of the abandonment, constitutes the criterion by which is to be ascertained whether a total loss has occurred or not, for which an abandonment can be made. If the abandonment when made is good, the rights of the parties are definitively fixed; and do not become changed by any subsequent events. If, on the other hand, the abandonment when made is not good, subsequent circumstances will not affect it, so as retroactively to impart to it a validity which it had not at its origin.

In cases where the abandonment is founded upon a supposed technical total loss, by a damage or injury, exceeding one-half of the value of the vessel; although the fact of such damage or injury must exist at the time; yet it is necessarily open to proof, to be derived from subsequent events. Thus, if the repairs, when subsequently made, clearly exceed the half value, it is plain that this affords one of the best proofs of the actual damage or injury. On the other hand, if the sub equent repairs are far below the half value, this, so far as it goes, affords an inference the other way. In many cases of stranding, the state of the vessel may be such, from the imminency of the peril, and the apparent cost of expenditures requisite to deliver her from it, as to justify an abandonment; although, by some fortunate occurrence, she may be delivered from her peril without an actual expenditure of onehalf of her value, after she is in safety. Where, in the circumstances in which the vessel then may have been, in the highest degree of probability the expenditures to repair her would exceed half her value, and if her distress and peril be such as would induce a considerate owner, uninsured, and upon the spot, to withhold every attempt to get the vessel off, because of such apparently great expenditures; the abandonment would doubtless be good.

In respect to the mode of ascertaining the value of the ship, and, of course, whether she is injured to the amount of half her value, it has, on the fullest consideration, been held by this Court; that the true basis of the valuation is the value of the ship at the time of the disaster; and that if after the damage is, or might be repaired, the ship is not, or would not be worth at the place of repairs, double the cost of repairs, it is to be treated as a technical total loss.

The valuation in the policy, or the value at the home port, or in the general market of other ports, constitutes no ingredient in ascertaining whether the injury by the disaster is more than one-half of the value of the vessel, or not. For the like rea son, the ordinary deduction in case of a partial loss, of "one-third new for old," from the repairs, is equally inapplicable to cases of a technical total loss, by an injury exceeding one-half of the value of the vessel.

The mere retardation of the voyage, by any of the perils insured against, not amounting to, or producing a total incapacity of the ship eventually to perform the voyage; cannot, upon principles well established, be admitted to constitute a technical total loss, which will authorize an abandonment. A retardation for the purpose of repairing damage from the perils insured against, that damage not exceeding one moiety of the value of the ship, falls directly within this doctrine. Under