Desertion of a Merchant Ship by Seamen. regard to the mediateness or immediateness of the pedigree or degrees of consanguinity. Thus a descent from the grandfather, who dies in possession, to the grandchild, the father being then dead; or from the uncle to the nephew, the brother being dead; is in law an immediate descent, although the one is collateral and the other lineal; for the heir is in the per, and not in the per and cui. On the other hand, with reference to the line of pedigree or consanguinity, a descent is often said to be immediate, when the ancestor from whom the party derives his blood is immediate, and without any intervening link or degree; and mediate when the kindred is derived from them, medient altero, another ancestor intervening between them. Lessee of Levy v. M Cartee, 6 Peters, 102. 12. The statute of descents in Maryland has not declared how an intestate estate shall descend, which the intestate derived from his half brother, or from his brother of the whole blood, or from his son or daughter, or from his wife; hut such estates are left to descend as at common law. Barnitz's Lessee v. Casey, 7 Cranch, 456; 2 Cond. Rep. 561. 13. A person born in England before 1775, and who never was in the United States, cannot take lands by descent in the state of Maryland. Dawson's Lessee v. Godfrey, 4 Cranch, 321; 2 Cond. Rep. 124. 14. The statutes eleven and twelve William III., ch. 6, which are in force in Maryland, remove the disability of claiming title by descent through an alien ancestor, but do not apply to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law, if the ancestor was a natural born subject. M'Creery's Lessee v. Somerville, 9 Wheat. 394; 5 Cond. Rep. 608. 15. Thus where M. died seised of lands in Maryland, intestate and without issue, leaving a brother R., an alien, and three nieces, daughters of R., who were natural born citizens of the United States, it was held they could not claim as heirs to M., through R., their father, he being an alien and still living. Ibid. 16. By the Massachusetts statutes of descents, reversions and remainders after life estates vested by descent in the intestate, pass to his heirs, without any regard to the ancestor from whom he inherited, in the same manner as estates in possession. Cook v. Hammond, 4 Mason's C. C. R. 467. 17. The common law in such case is different, and gives the estate in reversion to the heir of the first purchaser or reversioner, who is heir at the time when the life estate expires. Ibid. 18. Under the act of 1793, ch. 36, the eldest son took a double portion in remainders and reversions, as well as in estates in possession. Ibid. DESERTION OF A MERCHANT SHIP BY SEAMEN. 1. Desertion during the voyage is, by the maritime law, a forfeiture of all wages antecedently due. But a desertion, to work this effect, must be not merely an absence without leave, or in disobedience of orders, but animo non revertendi, an intention to abandon the ship and the service. Cloutman v. Tunison, 1 Sumner's C. C. R. 373. 2. If, after desertion, a seaman offers to return to duty in a reasonable time, and offers amends, and repents of the offence, the master is bound to receive him back as a case fit for condonation, unless his previous conduct would justify a discharge. Ibid. 3. By the act of congress of 1790, ch. 56, a statute desertion and forfeiture of wages are created by forty-eight hours' absence without leave, if a proper entry be made of the absence on the log-book. Ibid. 4. The effect of this provision is, that the absence for such a period is deemed conclusive evidence of desertion; whereas, in the maritime law, it would only afford a presumption of desertion. Ibid. 5. The due entry in the log-book is indispensably necessary to inflict the statute forfeiture. If not made on the very day of the absence, there can be no forfeiture inflicted. Ibid. 6. Desertion, to bring after it the forfeiture of wages, either by the maritime law or the statute, must be during the voyage, and before it is ended. Ibid. 7. The voyage is ended, when the ship has arrived at her port of destination, and is moored in safety at the accustomed place; although her cargo is not unliveried. Ibid. 8. Officers and seamen are bound to remain by the ship, and unliver the cargo; if they do not, they are liable for damages, and a compensation to the owner. Ibid. 9. A forfeiture of two months' wages was deducted from the wages of the mate, for his ab. sence without leave during the unlivery of the ship, under circumstances. Ibid. 10. To entitle the owner or master of a vessel to the forfeiture of a mariner's wages, on account of and up to the time of his absenting himself from the vessel for more than forty-eight hours, without permission from the master or commanding officer; such absence must have been entered in the log-book, by the officer having charge of it, on the day on which the seaman absented himself. The Phabe, 1 Wash. C. C. R. 48. 11. Mariners received again on board, after desertion, is a waiver, or pardon of the forfeitures previously incurred. Whitton v. The Commerce, 1 Adm. Decis. 160. 12. If a seaman has incurred a forfeiture by absenting himself from the vessel, and "repents and makes an offer of satisfaction, and returns to duty in due time," that is, before the master has hired another in his place, or otherwise fairly rendered it impracticable, without injury to the owner, to receive him again; the master is bound to receive him. Ibid. 13. Where mariners had deserted from a ship on shore, and, in a perilous situation, and were confined at the instance of the master, the court held the voyage was broken up by the misfor tunes of the ship, and discharged the mariners Detinue. Devastavit.-Deviation. from imprisonment. Sims v. Mariners, 2 Peters' | any unauthorized absence of a seaman from his Adm. Decis. 393. ship for forty-eight hours to be desertion, applies to all cases where the seaman does not return within such time, although he may have been prevented by the sailing of the ship. For the ship is not bound to wait for him, but he is bound to rejoin the ship within that period, suo periculo. Ibid. 14. Seamen deserting a vessel under circumstances of distress or danger, are answerable for the damages which may be sustained in consequence of their dereliction of duty; and lose their wages. Ibid. 15. To justify the forfeiture of a seaman's wages for absence, under the provisions of the law of the United States, of 20th July, 1790, it is indispensable that there be an entry in the log-book of the fact, of the name of the seaman, and his having gone without leave. Wood v. The Nimrod, Gilpin's D. C. R. 86. 16. To justify the forfeiture of a seaman's wages for absence, under the provisions of the act of 1790, the entry in the log-book is indispensable, although the absence was permanent. and although it occurred after the vessel arrived at her last port of delivery. Knagg v. Goldsmith, Gilpin's D. C. R. 212. 17. Where a seaman, who has signed shipping articles, voluntarily absents himself from the vessel in a port of the United States, an entry may be made in the log-book, and his wages forfeited, according to the provisions of the act of 1790; and he may be apprehended and detained in jail until the vessel is ready to proceed on her voyage, according to the provisions of the seventh section of that act. Brower v. The Maiden, Gilpin's D. C. R. 296. 18. Where the departure of seamen from a vessel, before the termination of a voyage, is involuntary on their part, or with reasonable cause, or with the apparent assent of the master, they do not forfeit their wages. Magee v. The Moss, Gilpin's D. C. R. 230. 19. To justify seamen for leaving a vessel before the termination of a voyage, on account of the cruelty of the master, it must be apparent that they could not remain without extreme danger to their personal safety. Ibid. 228. 20. Where shipping articles authorize the master to touch at certain places, or as he may direct," it is no violation of the contract with the seamen, to stop at a place not named, and affords no justification to them to leave the vessel. Wood v. The Nimrod, Gilpin's D. C. R. 84. 21. A change of voyage from that specified in the shipping articles must be actually resolved on or known to a seaman, to authorize him to leave a vessel without forfeiting his wages. Douglass v. Eyre, Gilpin's D. C. R. 150. 22. Where a vessel arrives at the last port of delivery, and is safely moored at the wharf, and the articles stipulated that the seamen "should not go out of the vessel until the cargo is landed," if a seaman leaves the vessel before discharge of the cargo, a deduction from the wages is allowed; but is not a forfeiture of the whole. Knagg v. Goldsmith, Gilpin's D. C. R. 212. 23. By the general maritime law, desertion is an unauthorized absence from the ship, with an intention not to return, and it creates a forfeiture of wages. Coffin v. Jenkins, 3 Story's C. C. R. 138. 24. The statute of the United States, declaring 25. In the present case, it was held, that the circumstances showed, that the desertion by the plaintiff was the result of a previous and deliberate intention to desert; and at all events, an opportunity having been offered to him to rejoin his ship within the forty-eight hours, that his refusal to do so, constituted a desertion, and he had thereby forfeited his wages. Ibid. 26. The only cases where desertion does not carry with it a forfeiture of wages, are cases having mitigated circumstances, where the party deserting had a strong excuse, founded on gross misconduct or harsh usage towards him; or where, having a locus poenitentiæ, he has acknowledged his fault, and offered to return to his duty within a reasonable time, and his services have been rejected, or cases of a similar nature. Ibid. 27. The doctrine in the case of Cloutman v. Furnison, (1 Sumner's R. 173), affirmed. Ibid. See ADMIRALTY-Ante, page 69. DETINUE. 1. If the forfeiture be of a chattel, an action of detinue, not an action of debt, is the proper action. Bullard v. Bell, 1 Mason's C. C. R. 243. 2. Where an appointment has been made by the President of the United States, and the commission is afterwards withheld, an action of detinue will not lie for the commission. Marbury v. Madison, 1 Cranch, 137; 1 Cond. Rep. 267. DEVASTAVIT. It is a well settled rule, that one executor is not responsible for the devastavit of his co-executor, any farther than he is shown to have been knowing and assenting at the time to such devastavit or misapplication of the assets: and merely permitting his co-executor to possess the assets, without going farther and concurring in the application of them, does not render him answerable for the receipts of his co-executor. Each executor is liable only for his own acts, and what he receives and applies; unless he joins in the direction and misapplication of the assets. Peter v. Beverly, 10 Peters, 532. DEVIATION. 1. If a vessel be insured at and from Kingston, in Jamaica, to Alexandria, and take in a cargo at Kingston for Baltimore and Alexandria, Deviation. and sails with the intention of first going to Baltimore, and thence to Alexandria, and, before she arrives at the dividing point, is captured; it is a case of intended deviation only: and the assured is entitled to recover. The Marine Ins. Co. of Alexandria v. Tucker, 3 Cranch, 357; 1 Cond. Rep. 561. 2. An intent to do an act can never amount to the commission of the act itself. That an intended deviation will not vitiate a policy, and that the vessel remains covered by her insurance, until she reaches the point of divergency, and actually turns off from the voyage insured, is a doctrine well understood among merchants; and has universally governed the decisions of the British courts. Ibid. any men of war off the Havana." The vessel sailed on the voyage insured, and put into Matanzas, to avoid British cruisers, who were then off the Havana, and were in the practice of capturing neutral vessels bound from one Spanish port to another. While at Matanzas, she unloaded her cargo by an order from the Spanish authorities, and afterwards proceeded to Havana, whence she sailed on her voyage to New York, and was afterwards lost by the perils of the sea. It was proved that the stopping and delay at Matanzas was necessary to avoid capture; that no delay was occasioned by discharging the cargo; and that the risk was not increased, but diminished. Held, that the order of the Spanish. government was obtained under such circum the cargo; but that the stopping and delay at Matanzas were permitted by the policy, and that the unloading the cargo was not a deviation. Hughes v. Union Insurance Co., 3 Wheat. 159; 4 Cond. Rep. 217. 3. The ordinary rule of ascertaining the voy-stances as to furnish no excuse for discharging age insured, is by adverting to the termini; a rule which is certainly correct as far as it extends but in the right application of which, it is easy to conceive that cases may occur, in which it would bear injuriously on the insurer. It depends on the particular circumstances of the case, whether, if the vessel be captured and recaptured, the loss will be total or partial. Ibid. 4. A detention at sea, to save a vessel in distress, is such a deviation as discharges the underwriter, and the owner stands his own insurer. Mason et al. v. The Blaireau, 2 Cranch, 240; 1 Cond. Rep. 397. 5. If a vessel go out of her way to save the life of man, this will not be considered a deviation. The humanity of the motive, and the morality of the act, give it a strong claim to indulgence; but, after this object is effected, if the stoppage be continued, or the risk increased, by adding to the cargo, diminishing the crew, or by other means for the purpose of saving the property found, the underwriters are discharged. Bond v. The Cora, 2 Wash. C. C. R. 80. 9. A vessel armed as a letter of marque, and insured as such, has no right to cruise at large for prizes; but she may chase and capture hostile vessels coming in sight in the course of her voyage, without its being a deviation: and there is no difference in the law, if the vessel be not described in her policy as a letter of marque, provided that fact be made known to the underwriter before the execution of the policy. Haven et al. v. Holland, 2 Mason's C. C. R. 230. 10. Whether a delay at a particular port constitutes a deviation, depends on the usage of trade with reference to the object of selling the cargo. Where different ports are to be visited for this purpose, the owner has a right to limit the price at which the goods may be sold, to a reasonable extent; and a delay at a particular port, if bona fide made for that purpose, does not constitute a deviation, though occasioned by this restriction. Ibid. 11. Goods insured "at and from New York, to the Cape of Good Hope, with liberty to proceed to and trade at the Isle of France, and thence to any other port or ports in the Indian seas, and at and from the ports she might go to, back to New York, with liberty to touch and trade as usual for refreshments, on the outward and homeward voyage." The ship touched at the Isle of France, went thence to Trincomale, 6. "I entirely agree with my lamented brother, the late Judge WASHINGTON, in declaring, that no stoppage on the high seas, for the purpose of saving life, is or can be deemed a deviation from the voyage, so as to discharge the ship and cargo. The duties of humanity call upon every human being to do such acts of mercy and charity; and that duty is enforced by all the authoritative precepts of Christianity, which no one is at liberty to disregard. But I further agree with him in holding, that any fur-and thence to Madras, where she sold part of her ther stoppage, for the purpose of saving property, is a deviation from the voyage, and discharges the underwriters." Per Mr. Justice STORY. The Henry Ewbank and Cargo, 1 Sumner's C. C. R. 424. 7. If a vessel sail to a port within the policy, with intent to go to a port not within the policy, in case the former should be blockaded; this is not a deviation pending the voyage to the first port. Maryland Insurance Co. v. Wood, 7 Cranch, 402; 2 Cond. Rep. 548. 8. Insurance on a vessel and freight, "at and from Teneriffe to the Havana, and at and from thence to New York, with liberty to stop at Matanzas," with a representation that the vessel was "to stop at Matanzas, to know if there were cargo, and received an order on Tranquebar, where she took in goods purchased with the order, and proceeded to Batavia, where she sold the residue of her original cargo, as well as that taken in at Tranquebar, and invested the proceeds in a return cargo. The first and second officers being dead, the captain, on his deathbed, being then on his return voyage, directed the crew to take the vessel to the Isle of France, and deliver her to the American consul, which was done. The crew, after the death of the captain, in a council, determined that it was expedient to make the Isle of France. On her arrival there, the correspondent of the plaintiff claimed possession; but the court decreed it to the consul, who procured a survey, and, think Deviation. during which time the place was captured by the Dutch, and the vessel and cargo condemned as a prize. Held, that the return to Aruba was a deviation which discharged the underwriters. Martin v. Delaware Insurance Co., 2 Wash. C. C. R. 254. 15. The smallest deviation from the usual course of the voyage, without a justifiable necessity, discharges the underwriters, although the loss was not the immediate consequence of the deviation. Ibid. ing the vessel overloaded, sold part of her cargo, | to Aruba, where she remained part of two days, and put in a lighter load. He also put on board a British subject as captain; and the vessel was lost on her return. Held, that the permission to trade at the Isle of France ought to be carried forward to the ports in the Indian seas; that this trading was not limited to the mere selling the outward cargo, but embraced repeated acts of buying and selling; that the acts of trading stated, did not amount to a deviation; that the going to the Isle of France, being from necessity, and for the general benefit of all concerned, was justifiable; that the insured were not bound by the acts of third persons, performed in consequence of a misfortune occurring in the voyage, which misfortune alone, and not the act of the insured, or his agent, gave to such third person a right to interfere; that the changing the cargo at the Isle of France, if it could be imputed to the insured, would have avoided the policy, because it would have altered the risk. Winthrop v. The Union Insurance Co., 2 Wash. C. C. R. 7. 12. Instances of necessity for a deviation which are generally met with, are stress of weather, injury sustained by the ship which requires to be repaired, going to join convoy, and the like. But these are only examples which serve to illustrate the principle. There may be many other instances where the necessity will be equally great, and equally valid to excuse a deviation. Ibid. 16. Where the termini of a voyage are fixed, the vessel cannot go out of the usual course of the voyage, though she may be permitted to stop and trade at any port or place, unless there should be such necessity as will excuse a deviation. Coles v. Marine Ins. Co., 3 Wash. C. C. R. 159. 17. A deviation is not merely the going out of the track or course usually taken; but it is also a departure from the express or implied terms of the contract. Warder et al. v. Goods, &c., 1 Adm. Decis. 31. Manufacturers' Ins. Co., 1 Sumner, 232. 19. Where there is a deviation from the voyage in the shipping articles, a refusal of the seamen, subsequently, to do duty on that account, does not amount, at law, to an endeavour to commit a revolt under the act of congress of 1835, ch. 40, sec. 2. United States v. Mathews, 2 Sumuer, 47. 18. A vessel was insured from A to B, and her port of discharge in the United States. She went to C and took in a return cargo for D, and stopped at S. on the return voyage. The underwriters signed a memorandum that the deviation to S. should not prejudice the insurance, the vessel having sailed from thence to E. There was a total loss by shipwreck. Held, that the 13. Where the policy was "on goods at and memorandum did not help the deviation of going from Philadelphia to Tonningen or Hamburgh, to C instead of B; and that the misstatement if not blockaded; warranted American property, of the return voyage being to E., made the proof whereof to be made here." By his in-memorandum of no effect. Gladden v. The structions, which were not communicated to the underwriters, the captain was directed to proceed to Tonningen, whence he was to forward, by express, his letters to his consignee at Hamburgh. There was also this clause in the instructions: "If you can ascertain and obtain permission to go to Hamburgh from the cruising vessels at the entrance of the Eyder, you will proceed; but on no account attempt it, unless you are well assured that the blockade of the Elbe is raised." The vessel was captured in the channel by the British, and condemned for a breach of the blockade of Hamburgh. Held, that as the mouth of the Eyder, where the permission was to be procured, was twenty miles from the Elbe, was not inserted, and was in the direct course to Tonningen, to which port the vessel might legally go; there was in fact no forfeiture of neutrality: nor was the concealment of the instructions, a concealment material to the risk. Sperry v. Delaware Insurance Co., 2 Wash. C. C. R. 243. 14. On a policy on goods, "on a voyage at and from Kingston to Aruba, and at and from thence back to Kingston, with liberty to touch at Rio de la Hache;" afterwards, for an additional premium, it was agreed that "the vessel might take in the whole or part of her cargo at Coro." The vessel sailed on the voyage, stopped about eight days at Aruba, and took in a person to assist in purchasing mules at Coro. She returned 20. Where the termini of a voyage are fixed, the continuity of such a voyage cannot be broken by the voluntary deviation of the master, for the purpose of carrying on an intermediate trade. The Joseph, 8 Cranch, 457; 3 Cond. Rep. 212. 21. It is not indispensable to the termination of a voyage, that the vessel should arrive at the terminus of her original destination. It may be produced by stranding, distress of weather, or any other cause, inducing her to enter another port, with a view to terminate her voyage bona fide. Otis v. Walter, 2 Wheat. 18; 4 Cond. Rep. 10. 22. Where a voyage is broken up without necessity in a foreign port, and the seamen are discharged without payment to the consul of the three months' wages required by the act of the 28th February, 1803, the court will, on a libel of the seamen, compel the owner to pay the three months' wages, two-thirds to the seamen, and the other third for the use of the United States._ _Pool v. Welsh, 1 Gilpin, 198. 23. The payment of the three months' wages Devise. under the act of 28th February, 1803, is confined to cases of the voluntary discharge of seamen in a foreign port. Ibid. 24. An insurance was effected on the cargo of the Actress, from New York to New Orleans, and after she passed Havana she returned to that port on a plea of a deficiency of water, where, by order of the government, the cargo was landed, and put in the custom-house stores; the vessel not being permitted to depart with her cargo. The American consul sold the cargo: and the plaintiff claimed in this suit to recover the amount of the loss sustained by the sale. If the necessity produced by the want of water really and fairly existed, a sufficiency for the voyage being taken on board at New York, and Havana was the nearest port, a deviation was justifiable. Wood et al. v. The United States Ins. Co., 2 Wash. C. C. R. 301. 25. What will be considered a deviation from the voyage insured, and under what circumstances a vessel may proceed to a port out of her direct course, and for what causes she may remain at such port, are stated in the case of Winthrop v. The Union Ins. Co., 2 Wash. C. C. R. 7. Coles v. The Marine Ins. Co., 3 Wash. C. C. R. 159. DEVISE. 1. A devise of "all the estate called Marrowbone, in the county of Henry, containing, by estimation, two thousand five hundred and eighty-five acres of land," carries the fee. Lambert's Lessee v. Paine, 3 Cranch, 97; 1 Cond. Rep. 466. 2. J. P., by his last will, after certain pecuniary legacies, devised as follows: "Item, I give and bequeath unto my loving wife M. all the rest of my lands and tenements whatsoever, whereof I shall die seised, in possession, reversion or remainder, provided she has no lawful issue. Item, I give and bequeath unto my beloved wife, whom I likewise constitute, make and ordain my sole executrix of this my last will and testament, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed," &c. The testator died seised without issue, and after his death the widow married one G. U., by whom she had lawful issue. Held, that she took only an estate for life, under the will of J. P. Wright v. Denn, ex dem. Page, 10 Wheat. 204; 6 Cond. Rep. 76. 3. Where there are no words of limitation to a devise, the general rule of law is, that the devisee takes an estate for life only; unless from the language there used, or from other parts of the will, there is a plain intention to give a larger estate. Ibid. 4. It must be a plain intention, because if it be doubtful or conjectural upon the terms of the will, or if full legal effect can be given to the language, without such an estate, the general rule prevails. Ibid. 5. It is not sufficient that the court may entertain a private belief that the testator intended a fee: it must see that he has expressed that intention with reasonable certainty on the face of the will, for the law will not suffer the heir to be disinherited upon conjecture. Ibid. 6. Where the words of the devise admit of passing a greater interest than for life, courts will lay hold of an introductory clause, expressing an intention to dispose of the whole of the estate, to assist them in ascertaining the intention. But such clause will not so far attach itself to a subsequent devising clause as, per se, to enlarge the latter to a fee, where the words could not ordinarily import it. Ibid. 7. The words, "all the rest of my lands and tenements," &c., in this will, is not a residuary clause; but even if it were, they are not suffi cient to pass the fee without words of limitation superadded. Ibid. 8. After giving pecuniary legacies to his sisters, the testator devises as follows: "I give to my wife M. all the rest of my lands and tenements whatsoever, whereof I shall die seised, in possession, reversion or remainder, provided that she has no lawful issue. Item, Î give to my wife Mary, whom I also make my sole executrix, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed." After revoking all former wills, he makes A. B. executor of his will, "to take and see the same performed, according to its true intent and meaning; and for his pains"leaving the sentence unfinished. Mary, the wife, took an estate for life only. Lessee of Page v. Wright, 4 Wash. C. C. R. 194. 9. The testator devised to his son Joseph Eden, certain portions of his estate in New York, among which were the premises sought to be recovered in this suit, to him, his heirs, executors and administrators forever. In like manner he devised to his son Medcef, his heirs and assigns, certain other portions of his property; and adds the following clause: "It is my will, and I do order and appoint, that if either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor. And in case of both their deaths, without lawful issue, I give all the property aforesaid to my brother John Eden, of Lofters, in Cleaveland in Yorkshire, and my sister Hannah Johnson, of Whitby in Yorkshire, and their heirs." Medcef Eden died without issue, having devised his estate to his widow, and other devisees named in his will. According to the established law of New York, nothing passed under the ulterior devise over to John Eden and Hannah Johnson. Medcef Eden, on the death of his brother Joseph Eden, became seised of an estate in fee simple absolute. Waring v. Jackson et al., 1 Peters, 571. 10. Adverse possession taken and held under a sheriff's sale, by virtue of judgments and executions against Joseph Eden, will not, according to the decisions of the courts of New York, prevent the operation of a devise by another, in whom the title to the estate was vested by the death of the defendant in the executions. Ibid. 11. The testator, residing and owning real and personal estate in the county of Alexandria, District of Columbia, by his will gave "all his |