Rhinelander V. Ins. Co. of An embargo is not laid with a view to deprive the owner of his property, but the arrest is made with that Pennsylvania. view. In the first case, therefore, the property detained is not in hazard; in the last, it always is in hazard. So far the claim to abandon on an arrest is supported by stronger reason than the claim to abandon when detained by an embargo. * 45 But it is argued that the duration of an embargo has no definite limitation, while a neutral vessel may count on being instantly discharged. Such is the rapidity of proceeding in a court of admiralty, that its mandate of restoration is figuratively said to be "borne on the wings of the wind." Commercial contracts have but little connection with figurative language, and are seldom rightly expounded by a course of artificial reasoning. Merchants generally regard the fact itself; and if the fact be attended to, an embargo seldom continues as long as the trial of a prize cause, where an appeal is interposed. The history of modern Europe, it is believed, does not furnish an instance of an embargo of equal duration with the question whether the cargo of the Manhattan be or be not lawful prize. The reasoning of the books in the case of a capture by an enemy, and of an embargo, applies in terms, but certainly in reason, to an arrest by a belligerent, not an enemy. 2 Murshall, 483. The reasoning of the English judges in all the cases which have been read at bar, and their decisions on the question of abandonment, have received the attention of the court. To go through those cases would protract this opinion to a length unnecessarily tedious. With respect to them, therefore, it will only be observed, that the principles laid down appear to be applicable to an arrest as well as to a capture, or detention of foreign powers; and that a distinction between an arrest and such capture or detention, has never been taken. *The contract of insurance is said to be a contract of indemnity, and, therefore, (it is urged by the underwriters, and has been repeatedly urged by them,) the assured can only recover according to the damage he has sustained. This is true, and has uniformly been admitted. But if full compensation could only be demanded where there was an actual total loss, an abandonment could only take place where there was nothing to abandon. V. 45 Ins. Co. of Pennsylvania. There are situations in which the delay of the voy- Rhinelander age, the deprivation of the right to conduct it, produce inconveniences to the insured, for the calculation of which the law affords, and can afford, no standard. In such cases there is, for the time, a total loss and in this state of things the insured may abandon to the under writer, who stands in his place, and to whom justice is done, by enabling him to receive all that the insured might receive. A capture by an enemy, and an embargo by a foreign power, are admitted to be within this rule, and a complete arrest by a belligerent not an enemy, seems, in reason, to be equally within it. It is, therefore, the unanimous opinion of the court, that where, as in this case, there is a complete taking at sea by a belligerent, who has taken full possession of the vessel as prize, and continues that possession to the time. of the abandonment, there exists, in point of law, a total loss, and the act of abandonment vests the right to the thing abandoned in the underwriters, and the amount of insurance in the assured. 2. Have any circumstances occurred since the abandonment, which have converted this total into a partial loss? Without reviewing the conduct of the assured subsequent to that period, it will be sufficient to observe that he has performed no act which can be construed into a relinquishment of the right which was vested in him by the offer to abandon. It only remains, then, to inquire whether the release and return of the Manhattan deprives the assured of *the right to resort to the underwriters for a total loss, which was given by the abandonment. This point has never been decided in the courts of England. In the case of Hamilton v. Mendez, Lord Mansfield leaves it completely undetermined, whether the state of loss at the time the abandonment is made, or at the time of action brought, or at the time of the verdict rendered, shall fix the right to recover for a partial or a total loss. A majority of the judges are of opinion that the state of loss at the time of the abandonment must fix the rights of the parties to recover on an action afterwards brought; and the judge who doubts respecting it, is of opinion that, * 46 V Ins. Co. of Rhinelander in this case, counter security having been refused by the underwriters, the question of freight is yet suspended. Pennsylvania. It is to be certified to the circurt court of Pennsylvania, that in the case stated for the opinion of this court, the plaintiff is entitled to recover for a total loss. When both parties are aliens, the courts of the United States MONTALET v. MURRAY. (a) ERROR to the circuit court for the district of Georgia. The action was brought in the court below by Murhave not ju. ray, a citizen of the state of New-York, against Montalet, risdiction. an alien, and citizen of the French republic, upon sundry *47 promissory notes, made by the defendant at St. Domingo, If it does payable to the order of Monsieur Caradeaux de la Caye, not appear whose residence, or citizenship, or national character, cord that a does not appear in the declaration. upon the re have been the United suit might It was suggested that it did not appear by the record maintained in that a suit could have been prosecuted in that court to the courts of recover the contents of those notes if no assignment had be- been made, and therefore the court could not take cogtween the ori- nisance of the present case, being prohibited by the act ginal parties to a promis of congress, vol. 1. p. 55. s. 11. States sory note, no suit can be maintained those courts P. B. Key, for the defendant in error, stated that it upon it in appeared in the plea that the payee of the note was also by any subse. an alien, and subject of France. 4 Dall. 8. Turner v. quent holder. The Bank of North America. Costs are not given upon re versal of judgment, The Court was unanimously of opinion that the courts of the United States have no jurisdiction of cases between aliens. Key then suggested that perhaps it did not sufficiently appear upon the record that the original parties to the notes were aliens; (a) Present, Marshall, Chief Justice, Washington, Johnson and Livingston, Justices. V. But MARSHALL, Ch. J. said, that if itdid not appear Rhinelander upon the record that the character of the original par- Ins. Co. of ties would support the jurisdiction, that objection was Pennsylvania. equally fatal, under the uniform decisions of this court. Judgment reversed for want of jurisdiction, and with costs, under the authority of Winchester v. Jackson, at Ante, vol. 3. p. 514. last term. But on the last day of the term, The Court gave the following general directions to the clerk. That in cases of reversal, costs do not go of course, but in all cases of affirmance they do. And that when a judgment is reversed for want of jurisdiction, it must be without costs. *THE UNITED STATES v. WILLINGS AND FRANCIS. *48 An Ameri sea to an A sold to her ori fore her entry, THIS was an action of debt brought originally in the district court of the United States for the district of can registered vessel, in part Pennsylvania, for the penalty of a bond dated Novem- transferred by ber 16th, 1802, conditioned to pay to the collector of the parol while at customs, "the sum of 7,720 dollars and 41 cents, OR the merican citiamount of the duties to be ascertained as due and arising zen, aud reon certain goods," &c. "entered by the above bounden ginal owners Willings & Francis, as imported in the ship Missouri, on her return from Canton, as per entry, dated 16th November, 1802." into port, beThe pleadings which ended in a general demurrer to does not by the surrejoinder, brought into view the question, whe- that operation, lose her privither the ship Missouri, at the time of her arrival and leges as an Aentry from Canton, was entitled to the privileges of a registered ship of the United States; for if she was, the come subject sum mentioned in the condition of the bond (which had to foreign dubeen calculated as if she had been a foreign bottom) was too large by the sum of 702 dollars and 5 cents. The facts upon which this question arose, appear, by the record, to be as follows. The ship Missouri, when she sailed from Philadelphia for Canton, was a duly registered ship of the Uni merican bot tom, nor be ties. V. Willings. * 49 United States ted States, owned wholly by Willings & Francis, citizens of the United States. While at sea, and while the register of the ship was on board in possession of the master, she was in part sold by Willings & Francis, in Philadelphia, to 7. G. Koch and others, citizens of the United States, on the 12th of February, 1801, but was not then registered anew by her former name, nor was there an instrument in writing, in the nature of a bill of sale, reciting at length the certificate of registry. On the 15th of November, 1802, after the arrival of the ship at Philadelphia, and before any report or entry, Koch and others, the vendees, made a parol resale of their part of the ship to Willings & Francis, whereby the whole was revested in them. Afterwards, on the same 15th of November, (it being the day of her arrival,) the register *was delivered up by the master of the ship to the collector of the port of Philadelphia, and the vessel duly reported and entered; and T. W. Francis, one of the part owners, resident at that port, upon the entry of the ship, offered to make oath that the register contained the names of all the persons who were then owners of the ship; that since the granting of the register the ship had been in part sold by Willings & Francis to Koch and others, who had resold the same to Willings & Francis, and that no foreigner had any share or interest in the ship. On the 22d of December, 1802, Willings & Francis made a bill of sale to Koch and others, reciting the register at length in due form of law, whereupon the ship was registered anew by her former name as the property of Willings & Francis, and Koch and others, as joint owners. On the 7th of January, 1803, Koch and others, by a bill of sale reciting the register at length, in due form of law, resold and reconveyed their part of the ship to Willings & Francis; whereupon the register was delivered up, and the ship registered anew by her former name, as the property of Willings & Francis. By the 14th section of the act of congress of 31st December, 1792, vol. 2. p. 146, 147. it is enacted, "That when any ship or vessel which shall have been registered pursuant to this act, or the act hereby in part repealed, shall in whole or in part be sold or transferred to a citizen, or citizens of the United States, or shall be altered in form or burden," &c. "in every such case |