was entered on December 21, 1895. 12 Utah, and Delecto Maston." This is followed by a 278. On the same day the maternal note of evidence, showing what took place aunts, who were embraced in the first class, during the trial in the district court, which applied for and were allowed an appeal to this is also supplemented by the oral and docucourt, and on December 21, 1895, a bond for mentary evidence offered in the trial of the costs was filed in the supreme court of the cause. It appears that Mrs. Amy offered the territory, and was approved by the chief decree of divorce between herself and ner husjustice thereof. The citation on appeal, band and the complaint filed in the suit in however, was not issued until about six which the judgment of divorce was entered. months thereafter, September 21, 1896. As, This was objected to on the ground that the in the meanwhile, the state of Utah had been documents were irrelevant, inasmuch as withadmitted into the Union this citation was out the summons issued in the cause they approved by the chief justice of the state of proved nothing. The counsel tendering the Utah, and on the same day findings of fact proof thereupon declared that although the and conclusions of law were made by the su- decree on its face recited the fact that the preme court. These findings, as the record summons had been regularly issued and certifies, were prepared by the late chief served, it was absent from the record, and he justice of the territorial court, and were proposed by further evidence to show that the adopted by the supreme court of the state of summons was regularly issued and due notice Utah as its own. From the findings thus thereof had been given to the defendant as made we have ascertained the facts above the law required. stated, and the findings moreover show that The court received the evidence subject to the controversy involved two issues. First, the objection. That is to say, it declared whether the brothers and sisters of the hall that it would pass on the objection when all blood were entitled to a distribution of the the evidence in the case had been offered, property left by the deceased in preference to thus treating the objection as in a measure the maternal aunts; and, second, whether going to the effect. Mrs. Amy and her Jennie Amy, the appellee, was the wife of the former husband, the defendant in the divorce decedent, it being conceded that if she was his proceedings, were then called, and testimony wife under the laws of Utah, she inherited the was given by both tending to show that the property left for distribution to the ex- summons had teen issued in conformity to clusion of his maternal aunts. The first ques- law and the defendant in the divorce suit tion, that is, the right to distribution as was personally cognizant of the suit, as he[183, serted in favor of the brothers and sisters of received and had in his possession the copies the half blood, may be at once dismissed from of the newspaper containing the published view, as the decree of the supreme court re- summons, and that due service thereof, in jected their claim, and they have not ap- the manner required by law, had been made. pealed. The second question, that is, whether All this testimony was objected to, and the Jennie Amy, the appellee, was the wife of the court likewise received it subject to objec deceased, depended upon the validity of a tion, no exception being taken to such acjudgment of divorce against a former hus- tion. In the course of the testimony of these band which had been rendered in her favor in witnesses various exhibits were offered tend1879 in the probate court of Washington ing to show the preparation of the summons county, Utah, the marriage having been con- in compliance with law, the publication in tracted in Utah and the ground for the di- the newspaper of the summons in conformity vorce being the abandonment of the wife by to legal requirements, its service on the dethe husband. After this judgment of fendant, and that he had both legal and acdivorce Mrs. Amy, on the 4th of August, tual notice of the suit, all of which was ob1886, was married to Oscar A. Amy, the de-jected to, and this, like the other objections, ceased. The controversy, then, between the was reserved to be considered when the eviparties now before us turned upon a claim dence was all in. The counsel of Royal D. [182]advanced by the maternal aunts, that Amy and others, the sisters and brothers of the judgment of divorce rendered between the half blood, offere in evidence what they Mrs. Amy and her former husband was void; designated as the judgment roll of the dithat she hence did not enter in a lawful mar-vorce proceeding. This was also objected to riage with the deceased, and was not entitled, therefore, as his wife to his estate.

The record contains, as we have stated, findings of fact made by the supreme court of the state and the conclusions of law, which the supreme court held to be decisive of the issues which the case involved, and to which we shall have occasion hereafter to refer. The findings of fact and conclusions of law are immediately followed in the record by this recital: "The foregoing is a statement of the facts found upon the evidence in the case, and the following are the rulings of the court on the admission and rejection of the evidence, which were duly excepted to by counsel for Adelia Young, Cedina C. Young,


by the counsel for the maternal aunts on the ground that the record was not complete and did not show compliance with the legal requisites, and was objected to by Mrs. Amy because it contained inatters asserted not to be properly a part of the judgment roti, and which were therefore not admissible. The court also reserved the objection to this evidence.

At the conclusion of the trial the court sustained all the objections to the evidence and the testimony, and decided the case against Mrs. Amy and in favor of the maternal aunts. To the rulings of the court rejecting the documentary and oral evidence, Mrs. Amy excepted, and upon the record as thus made the

were regular and that the sale ought to be consummated. Under those circumstances it is not inappropriate to refer to what was said in Mitchel v. United States, 9 Pet. 711, 742 [9:283, 294], in reference to the validity of a grant in Florida:

"It was done on the deliberate advice of an officer responsible to the crown, which makes the presumption very strong, if not irresistible, that everything preceding it had been lawfully and rightfully done."

under the laws and orders of the government,
the proceeds from the revenues and the con-
tingents of the states.

"Art. 5. The revenue on powder, salt deposits, the proceeds from the revenue on tobacco that belong to the federation, national properties and vacant lands (cascos), contingents, customs, tolls, and all the branches pertaining to the public credit, shall be administered directly by the commissary. The revenue on tobacco in the places where Again, it must be noticed that according raised, that from the maritime customs, from to the report of the proceedings the money the mail and lotteries, shall continue under received for this land was paid into the pub-their special administration, subordinate in lic treasury, the entry on the account book all respects to the commissaries." being in these words:

_232] Charged one hundred and sixteen dollars, two reales and five grains paid by Don Jose Maria Serrano in the name of and as attorney for Don Leon Herreros, resident of the company of Pimas at Tubac, in the following manner: One hundred and five dollars as the principal value for which was auctioned by this intendencia one sitio and three quarters of another of lands for raising cattle contained in the place of San Jose de Sonoita, situated in the jurisdiction of said company; six dollars, one real and seven grains for the said half annual charge and eighteen per cent for transfer to Spain; two dollars, ten grains for the two per cent as a general charge, and the three dollars as dues for the extinguished account, as is explained by the order of the intendencia marked No. 32, $116 2r. 5g.


Jose Maria Serrano.

Obviously these articles gave to this newly created officer the fullest powers in respect to the national revenues. When an office is created with such large powers as these, and the incumbent thereof, reviewing proceedings theretofore had by prior representatives of the government, and finding that a sale made by one of such prior officers has resulted in the payment of the cash proceeds thereof into the public treasury, confirms his action, ratifies his proceedings and issues appropri ate titie papers therefor, it would seem that any doubts which might hang over the power of the prior officer were put at rest, and that thereafter no question could be raised as to the validity of the sale.

And, indeed, such seems to have been the

assumption on the part of the government of Mexico, for there is no suggestion that from the time of the execution of these title papers in 1825 up to the date of the cession, 1853, the government ever raised any question as to the validity of the sale or sought to disIt would seem not unwarranted and un-turb ne possession of the grantee. While of reasonable to refer to the familiar rule that course time does not run against the governwhere an agent, even without express author-ment, and no prescription, perhaps, may be ity, makes a sale of the property of his prin- affirmed in favor of the validity of this grant, cipal, and the latter with full knowledge re- yet the inaction of the government during ceives the money paid on account thereof, these many years is very persuasive, not his retention of the purchase price is equiva- merely that it considered *that the intendant[234] lent to a ratification of the sale. We do not had the power to make the sale, but that in mean, however, to state this as a general fact he did have such power. These considproposition controlling all municipal and erations lead us to the conclusion that this governmental transactions, but only as one grant was one which, at the time of the cesof the circumstances tending to strengthen sion in 1853, was recognized by the governthe conclusion that these acts of the intend- ment of Mexico as valid, and therefore one ant were not mere usurpations of authority, which it was the duty of this government to but were in the discharge of duties and the respect and enforce. exercise of powers conceded to belong to his We pass, therefore, to a consideration of office. the second question, and that is, the extent Passing beyond the action of the intend-of the grant. It is claimed by the appellant ant, we find that in 1825 the commissary that the grant should be sustained to the exgeneral executed title papers, thereby rati- tent of the outboundaries named in the surfying the sale made by the intendant four vey. He insists that the accepted rule of years before. We have heretofore quoted the common law is, that metes and bounds articles 1 and 2 of the act of September 21, control area; that a survey was in fact made 1824, creating such office. We now quote and possession given according to such surarticles 3, 4, and 5: vey, and that although it now turns out that "Art. 3. These commissaries shall be, in the area within the survey is largely in exthe state or states and territories of their de-cess of the amount applied and paid for, the [233]marcation, head officers of all *branches of the grant must be held effective for the area exchequer. Consequently they are responsible within the survey.

for the prompt execution of the laws that We had occasion to examine this question
govern their administration, and all employ-in Ainsa v. United States, 161 U. S. 208, 229
ees thereof shall be subordinate to them. [40:673, 680], and there said:

“Art. 4. They shall collect and disburse,

"So monuments control courses and dis

tances, and courses and distances control | same time, that, continuing the measurement
quantity, but where there is uncertainty in
specific description, the quantity named may
be of decisive weight, and necessarily so if
the intention to convey only so much and no
more is plain."

along the cañon (because it was impossible to
go in any other direction on account of the
roughness of the ground), by reason of the
many turns that had to be made, so many
cords should be deducted from the total
number measured as would be calculated to
result in excess of the *real length measured (230
taken on a straight line, and considering
his demand reasonable I ordered the con-
tinuation of the survey as follows, to wit.

We think this case comes within the rule thus stated. The defendant in his answer alleges that the grant comprises 12,147.69 acres, while counsel for the government say that the measurements given by the surveyor make the area 22,925.87 acres. The amount of land appraised, advertised, sold and auc"And in view of the suggestion made by tioned off was one and three quarter sitios the claimant to reduce the number of cords (7,591.61 acres). While, of course, any slight actually measured so much as might be caldiscrepancy between the area of the survey culated to be in fact in excess of the true and that ostensibly sold might be ignored, measurement by reason of the many turns of yet the difference between the amount which the cañon over which the survey was made, as was understood to have been sold and the it could not be carried on straight, I ap amount now found to be within the limits of pointed for that purpose Lieutenant Don the survey is so great as to suggest the pro- Manuel Leon and the citizen Don Jose Ma. priety of the application of the rule laid down Sotelo who were unanimously of the opinion in Ainsa v. United States, supra. There can to deduct twenty-five cords out of the three be no doubt from the record of the proceed- hundred and twelve cords measured in the ings that one and three quarter sitios was all last survey down the cañon, the claimant conthat the purchaser supposed he had pur-senting thereto as just; the survey was cal [235]chased, all that the intendant supposed he culated to be two hundred and eighty cords, had sold, and all that was advertised or paid with which this survey was finished, resultfor. The original petition, after stating that ing from it one sitio and three fourths of anthere was a place known as San Jose de other sitio, registered by Don Leon Herreros Sonoita, declared that the petitioner for raising stock and for farming purposes." registered "in the aforesaid place two sitios The appraisers reported as follows: of land," which he desired to have surveyed, and to pay therefor the just price at which it might be valued. The petition therefore was not for any tract known by a given name, but for a certain amount of land in such place. The report of the survey is very suggestive. We quote from it as fol


"In virtue thereof they said that according to and because of the examination they had made and being aware of the existing regulations on the subject, the price should be fixed at, and they fixed it at, sixty dollars for each sitio, because they have running water and several banks of arable land which can be made use of by cultivation."

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"In the ancient abandoned place of San The direction for the almoneda or offer of Jose de Sonoita, on the 26th day of the month sale was of the lands "composed of one sitio of June, 1821, I, the said lieutenant com- and three fourths of another." The first almander and subdelegate of the military post moneda was of lands "comprising one sitio and company of Tubac and its jurisdiction, in and three fourths of another. .. and order to make the survey of the land de- appraised in the sum of one hundred and five nounced by Don Leon Herreros of this dollars, at the rate of sixty dollars per sitio." vicinity, delivered to the appointed officials The property put up for sale was lands "com■ well twisted and stretched cord, and in my prising one sitio and three fourths of another, presence was delivered to them a castilian appraised at one hundred and five vara, on which cord were measured and dollars, at the rate of sixty dollars each counted fifty regulation varas, and this be- sitio." The report of the promoter fiscal ing done, at each were tied poles, and stand-opens with this statement: ing on the spot assigned by the claimant as "The promoter fiscal of this treasury has the center, which was in the very walls of the examined carefully the expediente of the already mentioned Sonoita, there were lands surveyed in favor of Don Leon Hermeasured in a northeasterly direction sixty-reros, resident of the military post of Tubac, three cords, which ended at the foot of some by the Commissioner Don Elias Ygnacio low hills, a little ahead of a spring-a chain Gonzales, lieutenant commander of the 237] of mountains of a valley which goes on and post, in the place called San Jose de Sonoita, turns to the east, where was placed a heap in that jurisdiction, from which resulted one of stones as a monument; and being about sitio and three fourths of another, for raising to return to the center, the claimant ex-stock and horses, valued at sixty dollars each pressed a desire that the survey should be continued down the cañon until the two sitios should be completed, that on each side we should survey to him only twenty-five cords, because if the survey should extend further, by reason of the broken-up condition of the country and the rocky hills in sight, such land would be useless to him, saying, at the

sitio, which sums up one hundred and five dollars, as it has running water and some pieces of land fit for cultivation."

Subsequently to this report the direction was made for three public auctions, which were made, and the record of the first auc tion, the others being similar, is in these words:

and not merely that he does not know her to be unseaworthy at the time of beginning her voyage, or that he has used his best efforts to make her seaworthy; and that his undertaking is not discharged because the want of fit

who has exercised due diligence to make his vessel in all respects seaworthy, properly manned, equipped, and supplied, under the provisions of § 3 of the act of February 13, 1893, a right to general average contribution [189]for sacrifices made and suffered by him sub-ness is the result of latent defects. Richelieu

sequent to the stranding, in successful efforts
to save vessel, freight, and cargo?

Messrs. Wilhelmus Mynderse and
James C. Carter for appellants.
Mr. Harrington Putnam for appellees.

Mr. Justice Shiras delivered the opinion of
the court:

& O. Nav. Co. v. Boston Marine Ins. Co. 136 U. S. 408 [34: 398]; The Edwin I. Morrison, 153 U. S. 199 [38: 688]; The Caledonia, 157 U. S. 124 [39: 644].

In this condition of the law the so-called Harter act was approved on February 13, 1893 (27 Stat. at L. chap. 105), wherein, after providing in the 1st and 2d sections that it shall not be lawful for any owner, agent, or The answer we shall give to the question master of any vessel transporting merchancertified by the circuit court of appeals must dise or property from or between ports of be determined by the meaning and effect the United States and foreign ports, to which should be given to the act of February exempt himself from liability for loss or dam13, 1893, known as the Harter act. Admitted-age arising from negligence in the loading or ly, upon the facts conceded to exist in the present case, the owner of the ship has no right to a general average contribution from the cargo, unless such right arises from the operation of that act.

We shall first inquire why it is that, apart from the act in question, the owner of the ship is not entitled to a general average contribution where the loss was occasioned by the fault of the master or crew, and we find the rule is founded on the principle that no one can make a claim for general average contribution, if the danger, to avert which the sacrifice was made, has arisen from the fault of the claimant or of someone for whose acts the claimant has made himself, or is made by law, responsible to the cocontributors. We are not called upon either to trace the history of the rule, or to justify it as based on equitable principles, as it is conceded on both sides that such is the ordinary rule in the absence of statute or contract to modify it.

Nor is it necessary to inquire into the origin or nature of the law of general average. That has been so recently and thoroughly done in Ralli v. Troop, 157 U. S. 386 [39: 742], that it is sufficient to refer to the opinion of Mr. Justice Gray in that case.

proper delivery of such property, or to insert in any bill of lading any covenant or agreement whereby the obligations of the owner to exercise due diligence in manning and equipping the vessel, and to make such vessel seaworthy and capable of performing her intended voyage should be in anywise lessened, weakened or avoided, it was, in the 3d section enacted as follows:

"That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel *in all respects seaworthy and properly[191] manned, equipped, and supplied, neither the vessel, her owner or owners, agents, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent or master, be held liable for losses arising from the danger of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service."

Not only is the shipowner excluded from [190]contribution by way of general average when the loss arises from the ship's fault, but he is legally responsible to the owner of the cargo The argument on behalf of the shipowner for loss and damages so occasioned. And it is clearly expressed by the learned judge of is the well-settled law of this court that a the district court in the following terms: common carrier by sea cannot, by any stipu- "There is no doubt, I think, that the liabillation with a shipper of goods, exempt himself ity to indemnify the cargo owner is the sole from responsibility for loss or damage arising ground of the exclusion of the shipowner's from the negligence of the officers or crew; claim to general average compensation for that it is against the policy of the law to al- his expenses in rescuing the adventure from low stipulations that will relieve a carrier a peril caused by bad navigation. It therefrom liability for losses caused by the negli- fore seems necessarily to follow that in cases gence of himself or his servants. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397 [32: 788].

Further, it has frequently been decided by this court that in every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the shipowner that the ship is seaworthy at the time of beginning her voyage,

where all such liability is abolished by law, as it is under the circumstances of this case by the Harter act, no such exclusion can be justified; and that where no such liability exists on the part of the ship or her owner, his right to a general average contribution from the cargo arises necessarily by the same principles of equitable right that apply in ordinary cases of general average. Where due

diligence has been exercised to make the ship | sage of the act, the owner could not contract seaworthy, and a common danger arises upon against his liability and that of his vessel for the voyage by 'fault or error in the naviga- loss occasioned by negligence or fault in the tion or management of the ship,' the third officers and crew, because such a contract was section of that act declares that neither the held by the Federal courts to be contrary to vessel nor her owner, agent, or charterer public policy, and, in this particular, the ownshall become or be held responsible for dam-ers of American vessels were at a disadvanage or loss resulting therefrom;' the previous tage as compared with the owners of liability of the shipowner to the cargo owner foreign vessels, who can contract with for faults of navigation is thus abolished in shippers against any liability for negligence all cases coming within the act. In such or fault on the part of the officers and crew. cases faults in the navigation or management This inequality, of course, operated unfavorof the ship are no longer, by construction of ably on the American shipowner, and Con[192]*law, faults of the owner, as heretofore; and gress thought fit to remove the disadvantage, the ship and her owner are now no more liable not by declaring that it should be competent to the cargo owner for his damages therefrom for the owners of vessels to exempt themselves than the latter is liable to the shipowner for from liability for the faults of the master and the resulting damages to the ship. Both are crew by stipulations to that effect contained alike strangers to the fault, and equally free in bills of lading, but by enacting that, if from all responsibility for it; and hence all the owners exercised due diligence in making expenditures or losses voluntarily incurred their ships seaworthy and in duly manning for the common rescue are no longer made and equipping them, there should be no liain the discharge of an individual legal obli- bility for the navigation and management of gation, or in diminution of a fixed liability the ships, however faulty. resting upon one of the parties only, but are Although the foundation of the rule that truly a sacrifice voluntarily incurred, and forbade shipowners to contract for exempfor the common benefit, as much and as truly tion from liability for negligence in their so when made by the shipowner as when made agents and employees was in the decisions of by the cargo owner alone. On principle, the courts that such contracts were against therefore, in such cases, the one is as much public policy, it was nevertheless competent entitled to a general average contribution for for Congress to make a change in the standhis sacrifice as the other. .. The appli-ard of duty, and it is plainly the duty of the cation of this new relation of nonresponsibil- courts to conform in their decisions to the ity under the Harter act to cases of general policy so declared. average does not, in fact, make the least But we think that for the courts to dechange in the principles of general average clare, as a consequence of this legislation, that contribution. The rule remains as before, the shipowner is not only relieved from liathat he by whose fault, actual or construct- bility for the negligence of his servants, but ive, the ship and cargo have been brought is entitled to share in a general average reninto danger cannot recover an average contri-dered necessary by that negligence, would be bution for his expenses in extricating them. in the nature of a legislative act. The act in

And so the counter rule remains as before, question does, undoubtedly, modify the pubthat the interest which, being without fault, lic policy as previously declared by the makes sacrifices for the common rescue, is en-courts, but if Congress had intended to grant titled to an average contribution from what the further privilege now contended for it is thereby saved. Prior to the Harter act the shipowner, under our law, was constructively in fault for bad navigation and hence fell within the former rule. The Harter act, by abolishing his constructive fault and freeing him from all responsibility, withdraws him from the former rule and entitles him to contribution under the latter." 82 Fed. Rep. 472, 474-477.

We are unable to accept this view of the operation of the act of Congress.

*would have expressed such an intention in[ unmistakable terms. It is one thing to exonerate the ship and its owner from liability for the negligence of those who manage the vessel; it is another thing to authorize the shipowner to do what he could not do before, namely, share in the general average occasioned by the mismanagement of the master and crew.

What was the reasoning on which the courts proceeded in holding that it was against public policy to permit shipowners to contract for exemption from liability for the negligence of their agents? Was it not that such a state of the law would impel the shipowners to exercise care in the selection of those for whose conduct they were to be responsible? This being so, can it be reasonably inferred that Congress intended, when relieving shipowners from liability for the misconduct of their agents, to confer upon them the further right to participate in a general average contribution, and that to the detri

Plainly the main purposes of the act were to relieve the shipowner from liability for latent defects, not discoverable by the utmost care and diligence, and, in event that he has exercised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss resulting from faults or errors in navigation or in the [193]*management of the vessel. But can we go further, and say that it was the intention of the act to allow the owner to share in the benefits of a general average contribution to meet losses occasioned by faults in the nav-ment of the shippers? Such an interpretaigation and management of the ship?

tion of the statute would tend to relieve ship

Doubtless, as the law stood before the pas-owners, to some extent at least, from care in

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