
    THE SHIP GAUGES. J. B. VAN WAGENEN, ADM’R OF JARVIS, v. THE UNITED STATES. RICHARD B. BROWN, ADM’R OF ROGERS, v. THE SAME. JAMES C. HAYS, ADM’R OF VERMILYA, v. THE SAME. JAMES C. HAYS, EXECUTOR OF CHRISTOPHERS, v. THE SAME.
    [French spoilations 3900, 2961, 2117.
    Decided February 24, 1896.]
    
      On the Proofs.
    
    The Ganges is forced to put in to the Isle de France for repairs in February, 1798, where she is seized, condemned, and sold by the French authorities. The present contest is between different parties claiming title in the vessel. It appears that in 1797 Vermilya sold the vessel to Jarvis “all and every part," he owning three-fourths and holding powers of attorney from the other owners. ■ The sale was absolute in terms, but in fact the vesselwas conveyed in trust to protect Jarvis against loss of money. He entered immediately into control of the vessel as owner, but gave a formal declaration, subsequent to the capture, setting forth that as to money which might be recovered after paying his own claim with interest he held in trust for the creditors of the firm. Later Ver-milya gave a declaration that the ship “ belongs now” to Mary Ann, the daughter of Jarvis. Christophers was the son-in-law of Jarvis and the next of kin both of Jarvis and Vermilya.
    I. A bill of sale of a vessel from one owning three-fourths and holding a power of attorney from the other owners, vests the legal title, although in fact the vessel was conveyed in trust to protect the purchaser against losses.
    
      II. Congress by the Act 3d March, 1891 (26 Stat. L., p. 908), have indicated the legislative policy of ignoring the creditors of bankrupts as beneficiaries in these cases.
    III. A party possessing a full title to a vessel in law is the proper party to maintain a suit under the French Spoliation Act (23 Stat. L., p. 283), though under certain possible conditions creditors, as beneficiaries under a deed of trust, may have a claim upon the recovery.
    
      The Reporters’ statement of tlie case:
    This case now comes before tlie court on a preliminary hearing to settle tlie conflicting rights of adverse claimants as between themselves. As against the United States, the case is not yet decided. The following are the facts relating to the different titles to the vessel set up by the parties, as found by the court:
    I. The ship Ganges was built in Bordeaux, France, in 1795, and afterwards was purchased by the following citizens of the United States: Thomas Whippo, Charles P. lingers, and Thomas Vermilya, in the following proportions, to wit: Whippo, one-half; lingers and Vermilya, one-quarter each. December 22,1795, a register for the Ganges showing said ownership was issued from the consulate of the United States at Bordeaux. Under the command of said Whippo, the Ganges sailed from Bordeaux and in due course arrived in New York. At Bordeaux, January 29, 1796, before sailing, Thomas Whippo sold one-half his interest in the Ganges (i. e., one-quarter of the whole) to his brother, Isaac Whippo. (See 'Document A, finding xi.) Tlie Ganges was of 591 tons burden.
    II. February 18, 1796, Charles P. Sogers, being about to leave the United States, gave to his partner, said Thomas Vermilya, a general power of attorney, including specifically power to purchase and sell any vessel or vessels (see Document B, finding xi), and May 31,1796, Thomas Whippo also gave to said Vermilya a general power of attorney. (See Document 0, finding xi.)
    III. August 12, 1796, said Vermilya executed a bill of sale purporting to convey the whole of said vessel to Samuel P. Lloyd (see Document D, finding xi), and upon the same day said Lloyd executed a bill of sale purporting to convey the whole of said vessel back to said Vermilya. (See Document E, finding xi.)
    
      IV. Issac Whippo’s one-quarter interest in tbe Ganges was by him, December 21,1796, sold to said Rogers. This transaction occurred in Europe. (See Document A, finding xi.)
    V. January 30, 1797, said Vermilya sold the whole of said vessel to James Jarvis, a citizen of the United States. (See Document F, finding xi.)
    VI. August 12,1796, the Ganges sailed from New York for England under command of James Miller, who was afterwards, in England, relieved of the command and succeeded by Charles Langford, a naturalized citizen of the United States. When she left New York the Ganges carried the said register and a passport or sea letter, issued in the usual form by the collector of customs at New York.
    VII. August 27,1797, the Ganges, under charter to William P. White, sailed from London bound to a port to the east of the Cape of Good Hope (other than a port in China) and .return to Europe.
    The charter party was dated May 27,1797. Upon this voyage the Ganges carried the same papers as upon her voyage from New York, viséed by the United States consul in London, August 2,1797. The bill of sale from Vermilya to Jarvis was also on board the Ganges. (See Document F, finding xi.)
    VIII. The Ganges arrived at Batavia early in February, 1798, and there took on board a cargo of coffee, wine, arrack, sweetmeats, and canes. Late in April, 1798, she sailed from Batavia bound for Gothenberg, Sweden. In May, 1798, the Ganges, leaking, was forced for safety to put into the Isle de France, a French colony; there she was seized by the French authorities, and, June 28, 1798, was by the French tribunal condemned, confiscated, and was subsequently sold, and became a total loss to the owner.
    The grounds of condemnation were as follows:
    1. Because the said master, Charles Langford, was alleged to have produced no other proof of his naturalization as a citizen of the United States save a certificate, by a justice of the peace of the Commonwealth of Pennsylvania, that said Langford had taken an oath' of allegiance and loyalty to said Commonwealth.
    2. Because of alleged defects in the rdle d’equipage.
    3. Because the said vessel was not furnished with any other passport or sea letter save that witb which she departed from the port of New York in the year 1797.
    An appeal from the decree of condemnation was taken to the Council of Prizes at Paris, which, in November, 1806, dismissed the appeal.
    IX. The value of the vessel at the date of condemnation was-. The value of two-thirds of the freight was-.
    X. William P. White did, pursuant to the charter party, advance to said Langford, master, £4,000 sterling ($17,760), on account of the freight of said vessel for the voyage aforesaid, which was expended in the repair and equipment of the Ganges. The rate of freight prescribed in the charter party was as shown in the following extract therefrom:
    “ Said William P. White, his executors, administrators, or assigns, shall and will pay freight for the said cargo of coffee or such other goods as shall be so laden on board of the said ship at such port or ports in the East Indies, as aforesaid, at and after the rate of 15 shillings sterling for each and every hundredweight of 112 pounds English to the hundredweight of coffee, exclusive of tare, with 5 per cent primage, and in the same proportion for other goods that may be shipped on board the said ship, the freight of goods-than coffee to be ascertained by the square or cubic space which 112 pounds English weight of coffee will occupy when stored in the ship at the time of shipping and stowing the same, and the same to be so ascertained, measured, and determined before any other goods than coffee shall be sent on board.”
    At some time after the sale to Jarvis, Vermilya took advantage of the bankrupt law.
    The kinship of the families of Jarvis and Vermilya is as follows:
    James Jarvis married a sister of Thomas Vermilya; Ver-milya died unmarried September 18,1853, leaving a will admitted to probate in New York, whereby he devised his entire estate to the two children of his niece and to her husband; this niece was Mary Ann Jarvis Christophers; she was the daughter of said James Jarvis; her two children were Thomas Vermilya Jarvis Christophers and James Jarvis Vermilya Christophers; her husband was Thomas S. Christophers. James Jarvis Vermilya Christophers died intestate October 3,1865, unmarried, and Thomas 8. Christophers died July 3, 1869, leaving as his only heir at law said Thomas Vermilya Jarvis Christophers.
    
      XI. — Document A.
    “ To all to whom, this present Mil of sale shall come:
    
    “Know ye that I, tbe said Thomas Whippo, mariner, of New York, in the State of New York, for and in consideration of the sum of seven thousand dollars to me in hand truly paid at or before the unsealing and delivery of these presents, by Isaac ’Whippo, of the city of New York, in the State of New York, the receipt whereof I do hereby acknowledge and am therewith fully and entirely satisfied and contented, have granted, bargained, sold, and by these presents do bargain, grant, and sell, unto the said Isaac Whippo, one-quarter of the hull or body of the good ship Ganges, of the burthen of seven hundred tons or thereabouts, together with all and singular her appurtenances as she is now lying in the river Garone, in France, as witness my hand.
    “Bordeaux, 29th January, 1796.
    “Thomas Whippo.
    “Witnessed by—
    “Simon Spring and John Van Merlin.”
    “For value received I do hereby transfer and assign over to Mr. Charles P. Bogers this bill of sale and all other claims whatever to or against the ship Ganges, of New York, Thomas Whippo, late master.
    “Bordeaux, December 21,1796.
    “Isaac Whippo.
    “Witnessed by—
    “John Van Merlin.”
    Document B.
    “Know all men by these presents that I, Charles P. Bogers, of the city and State of New York, merchant, being about to go on a voyage to Europe, do make, constitute, and appoint Thomas Vermilya, of the said city, merchant, my true and lawful attorney, for me and in my name to settle all and every or any accounts between me and any person or persons, and to receive all and any or every sum and sums of money that is, are, or may be due and owing to me from any person or persons, and to give receipts and discharges therefor, and in case of delay or refusal of payment by any person or persons, to sue for and recover the money due and to become due to me from such person or persons, and to purchase and sell any vessel or vessels or other property, and for me and in my name and as my act and deed to sign, seal, and deliver any bill of sale or conveyance, and generally to transact all my business as fully as I could in person, with power also an attorney or attornies under him for that purpose, to make and to substitute and to do all lawful acts requisite for effecting the premises, hereby ratifying and confirming all that my said attorney or his substitute or substitutes shall do therein by virtue hereof.
    “ In witness whereof I have hereunto set my hand and seal the eighteenth day of February, in the year of our Lord one thousand seven hundred and ninety six.
    “Charles P. Bogers.
    “ Sealed and delivered in the presence of—
    “J. E. Keese.”
    “State oe New Yore:
    “Be it known that on the eighteenth day of February, one thousand seven hundred and ninety-six, before me, John Ereese, notary public for the State of New York, duly commissioned and sworn, came Charles P. Bogers, above named, and acknowledges the above letter of attorney to be his act and deed.
    “In testimony whereof I have hereunto set my hand and affixed my seal of office the day and year last aforesaid.
    “J. N. Keese, Notary Public?
    
    Document C.
    “ To all persons to whom these presents shall come or may concern.*■
    “Know ye that I, Thomas Whippo, master of the ship Can-ges, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, and in my place and stead put Thomas Yermilya, of the city and State of New York, merchant, my true and lawful attorney and agent for me in my name, place, and stead, and to and for my use and benefit, to ask, demand, and receive all and every or any sums of money that are and maybe due and owing to me by and from any person in America, and to give receipts and discharges for the same, and in case of .delay or refusal of payment by any ' person or persons, all and every, the sum and sums of money that is, are, or may be due and owing for me, and for this purpose to appear for me in any court or courts of law or equity, or before any judges, officers, or ministers of justice, there to do and perform all and every or any lawful act, matter, or thing necessary in and about the premises. And I do further authorize and empower the said Thomas Yermilya to sell and convey from time to time, and at such price and prices as he may deem proper, all or any goods, chattels, or personal property whatever belonging to me in America during my absence, and to manage and transact all my business in America as he may judge most for my benefit, with power to appoint an attorney or attorneys under him for all or any of the purposes aforesaid, and tbe same at bis pleasure to revoke, hereby ratifying and confirming all that shall be lawfully done in virtue of these presents.
    “ In witness whereof I have hereunto set my hand and seal at New York, the thirty-first day of May, in the year one thousand seven hundred and ninety-six.
    “Thomas Whippo. [l. s.]
    “ Sealed and delivered in the presence of—
    “J. Beese.
    “Th. Tyson.
    “Coliationné.
    “A. Bunel.”
    Document D.
    “Know all men by these presents that Thomas Whippo, master of the ship or vessel called the Ganges, and Charles P. Bogers, of the city and State of New York, merchant (by their attorney, Thomas Vermilya, of said city of New York, merchant), and the said Thomas Vermilya, owner of the ship or vessel aforesaid, for and in consideration of the sum of twenty-five thousand dollars, of lawful money of the United States of America, to them in hand paid, at or before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, have bargained and sold, and by these presents' do bargain and sell, unto Samuel P. Lloyd, of this city of New York, merchant, all and every part of the said ship Ganges, together with all and singular the masts, spars, ropes, sails, boats, anchors, cables, and all the tackle, apparel, and furniture to the said ship belonging or in any wise appertaining, and all the estate, rights, title, interest, property, possession, claim, and demand at law and in equity of them, the said Thomas Whippo and Charles P. Bogers and Thomas Vermilya, and of each of them, of and in and to the'same, to have and to hold the said ship Ganges, and all and singular other the premises, unto the said Samuel P. Lloyd, his executors, administrators, and assigns, to the only proper use and benefit of the said Samuel P. Lloyd, his executors, administrators, and assigns forever.
    “And the said Thomas Vermilya, for himself, his executors, and administrators, doth hereby covenant with the said Samuel P. Lloyd, his executors, administrators, and assigns, that he, the said Thomas Vermilya, hath good right, full power, and lawful authority to bargain, sell, or convey the said ship Ganges, and all and singular the premises aforesaid, in manner and' form, as the same are hereby bargained, sold, and conveyed to the said Samuel P. Lloyd, his executors, administrators, and assigns.
    “ In witness whereof the said Thomas Whippo and Charles P. Rogers (by their said attorney) and the said Thomas Yer-milya have hereunto set their hands and seals the twelfth day of August, in the year one thousand seven hundred and ninety-six.
    “THOMAS Whippo,
    
      u By Ms Att’y, T. Vermilya.
    
    “Charles P. Rogers,
    
      uBy Ms Att’y, T. Vermilya.
    
    “ Sealed and delivered in the presence of—
    “T. Keese.
    “ Rob’t Brett.”
    DOCUMENT E.
    “ Know all men by these presents that I, Samuel P. Lloyd, of New York, merchant, sole owner of the ship or vessel called the Ganges, of the burthen of eight hundred tons or thereabouts, whereof James Miller is master, now in the port of New York, for and in consideration of the sum of twenty-three thousand dollars of lawful money of the United States of America, to me in hand paid by Thomas Yermilya, of the city, county, and State of New York, merchant, at or before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, have bargained and sold, and by these presents.do bargain and .sell, unto the said Thomas Yermilya,' all and every i>art of the said ship Ganges, together with all and singular the masts, spars, ropes, sails, boats, anchors, cables, and all the tackle, apparel, and furniture to the said ship belonging or in any wise appertaining, and all the estate, right, title, interest, property, possession, and demand, at law and in equity, of me, the said Samuel P. Lloyd, of, in, and to the same, to have and to hold the said ship Ganges and all and singular other the premises, unto the said Thomas Yermilya, his executors, administrators, and assigns, to the only proper use and benefit of the said Thomas Yermilya, his executors, administrators, and assigns forever.
    “ In witness whereof I have hereunto set my hand and seal the twelfth day of August, in the year one thousand seven hundred and ninety-six.
    “Samuel P. Lloyd.
    “ Sealed and delivered in the presence of—
    “Keese and Rob. Brett.”
    Document F.
    
      tlTo all to toliom these presents shall come or may in any wise concern:
    
    “I, Thomas Yermilya, of the city and county and State of New York, merchant, and citizen of the United States of America, send greeting:
    “Know ye that I, the said Thomas Yermilya, for and in consideration of tbe sum of twenty-eigbt thousand dollars to me in band paid by James Jarvis, of New York, merchant, at or before tbe sealing and delivery of these presents, tbe receipt of which is hereby acknowledged, have bargained and sold and by these presents do bargain and sell unto the said James Jarvis, his executors, administrators, and assigns, all and every part of the ship or vessel called the Ganges, of New York, whereof James Miller is at present or was late master, now absent in a voyage, of the burthen of seven hundred and fifty tons or thereabouts, a foreign-built vessel, together with all and singular the masts, sails, boats, tackle, apparel, and furniture, and appurtenances to the same belonging or in any wise appertaining, to have and to hold the same rents, the said James Jarvis, his executors, administrators, and assigns, from and after her arrival at the port of London, in Great Britain, and the discharge of her cargo there, to the only proper use and benefit of the said James Jarvis, his executors and administrators and assigns forever.
    “And I, the said Thomas Yermilya, do hereby covenant for myself, my heirs, executors, and administrators, to and with the said James Jarvis, his executors, administrators, and assigns, that I, the said Thomas Yermilya, my heirs, executors, and administrators, the said ship Ganges and all and singular the premises hereinbefore mentioned, bargained, and sold, with the appurtenances, rents, tbe said James Jarvis, his executors, administrators, and assigns, do and will hereby warrant and forever defend.
    “In witness whereof I have hereunto set my hand and seal at New York the thirtieth day of January, A. D. 1797.
    ThoM’s Yermilya. [l. s.J
    “ Sealed and delivered in the presence of—
    “ J. Keefe, J. D. Keefe, and Y«. CuttiNG.”
    “State of New Yore:
    “ Be it known that before me, John Keefe, notary public for the State of New York, personally appeared Thomas Yermilya, within named, and acknowledged the within written bill of sale to be his free act and deed.
    “ In testimony whereof I have hereunto set my hand and affixed my seal of office the 30th day of January, 1797.
    “ Jh. Keefe, [l. s.]
    “ Oollationné.
    “A. BtjNEl.”
    XII. The following declaration of trust was made by said Jarvis:
    “Whereas I have received from Thomas Yermilya a bill of sale of the ship Ganges of New York, on or about the thirteenth day of January, one thousand seven hundred and ninety-seven, which ship was chartered in London for India, as will appear by the charter party signed about the twenty-seventh day of May, in the year one thousand seven hundred and ninety-seven, by and between Charles Langford, the captain of the said ship, and William P. White, at London, which charter party is witnessed by Win. Ludlam and Ourwen G-ale, broker, of said place; and whereas the said ship did sail from London and arrive at Batavia, in the Isle of Java, and was afterwards, on her return voyage from Batavia, obliged, from necessity, as has been said, to put into the Isle of France, where she was seized and condemned for the account and benefit of the then French Republic: Now, therefore, this is to certify that I hold the above-mentioned assignment or conveyance for the said ship Ganges in trust for the creditors of Thomas Yermilya and Charles P. Rogers, subject, however, to' the following exceptions and reservations:
    “To all claims which I may have in any matter of account, such accounts having taken place and been rendered before the said Thomas Yermilya and Charles P. Rogers took the bankrupt law of the United States, and likewise as it may respect any and all matters of accounts Avhich may have taken place in Europe between Charles P. Rogers and Zephaniah Platt, whereby my interest has been effected without my special consent.
    “Also to all demands which I may have for any indorsements on certain bills of exchange drawn by Thomas Yermilya or by Charles P. Rogers So Co., or both, and which bills of exchange were given into the hands of John Blagge, or were passed thro’ his hands.
    “Also to a certain demand which Sarah Yermilya has against Thomas Yermilya for a note of hand drawn by Thomas Yer-milya, payable to Sarah Yermilya, for about fifteen hundred dollars, the said note to bear interest from the date given.
    “It is likewise understood that the exceptions and reservations herein mentioned are all entitled to interest from the date.
    “It is to be understood that the exceptions and reservations declared by this instrument are first to be paid out of any sum or sums which may be recovered on account of the ship Ganges before mentioned, and the balance, if any, to be for. account of the creditors of Charles P. Rogers and Thomas Yermilya. I do not bind myself, however, to pursue the claim nor to be at any expense in such pursuit; yet I consent that it may be pursued by Thomas Yermilya or by his directions, always subject to the directions herein contained.
    “Belleviile, May 30th, 1810.
    “Jabíes Jarvis.
    “In presence of—
    “Mary Yerhilya.
    “Esther Y^eeks.”
    
      The following statement by Thomas Yermilya was found among the papers in this case:
    “The papers for the recovery of the ship Ganges, in the green tin case, are those to establish the condemnation of this vessel at the Isle of France and to obtain the value of the said ship from our Government. The ship was in the name of James Jarvis, as will appear by the said papers of condemnation at the Isle of France, and the same belongs now to Mary Ann Jarvis, as the only heir of said James Jarvis, and is her sole property, whatever may be recovered from them, or for the said ship Ganges, or the value thereof, she being the rightful owner of the said property.
    “Thos. Yermilya.
    “18 February, 1836.
    “(Endorsement:) Ship Ganges. Entered in memorandum book, page 14, April 24, 1837.”
    The following instruments were executed as therein appears:
    “Know all men by these presents that I, Thomas S. Chris-tophers, of the city of New York, gentleman, widower of the late Mary Ann Jarvis, deceased, for divers good and valuable considerations, and for and in consideration of one dollar to me in hand paid by John C. Lessig, of the borough of Potts-ville, Schuylkill County, Pennsylvania, the receipt whereof is hereby acknowledged, have granted, bargained, sold, transferred, assigned, set over, and conveyed, and by these presents do grant, bargain, sell, transfer, assign, set over, and convey, unto the said John C. Lessig, his heirs and assigns, all and every claim and demand that I am possessed of, or in which I have any interest against the United States arising out of the illegal seizure and forfeiture of the ship Ganges, her cargo, tackle, apparel, and furniture by the French liepublic, in or about the year 1798. .
    “To have and to hold the same, and all moneys that may accrue therefrom to the said John C. Lessig, his heirs and assigns, to his and their only proper use and behoof forever
    “And I, the said Tilomas S. Christophers, do hereby make, constitute,- and appoint the said John O. Lessig my true and lawful attorney, irrevocably for me and in my name to do and perform all such acts, matters, and things necessary and proper to be done in the prosecution, establishment, and recovery of the said claims, and suitable acquaintances to give and execute, and also 10 seal and deliver, all such instruments of writing in my name and stead, and acknowledge the same as may be necessary and proper to be done in the premises, with power to substitute and appoint one or more attorneys under him, and the same to remove at pleasure, hereby giving and grauting to the said John O. Lessig, his executors, administrators, and assigns my whole power and authority in (he premises, and hereby ratifying and confirming whatsoever the said John C. Lessig shall or may lawfully do iu the premises by virtue hereof, or by virtue of any authority therein contained, whether the same be expressed or implied.
    “And I, the said Thomas S. Christophers, do hereby further covenant and agree to deliver to the said John O. Lessig, or his duly authorized representative, all papers, documents, memo-randa, evidences, and matters of record connected therewith, or in any wise affecting the said claim, and to give him every facility, on being paid my reasonable expenses, for establishing anti recovering said claim as far as in my power lies, and also at all reasonable times hereafter to make, execute, and deliver unto the said John C. Lessig, his heirs and assigns, all such other and further instruments of writing as the said John O. Lessig, his heirs and assigns, or his counsel learned in the law may deem requisite and necessary for the obtaining, assuring, establishing, aud recovering said claim, and securing the proceeds thereof to the said John C. Lessig, his heirs and assigns, and to do and perform specifically the covenants and agreements herein I do hereby bind myself and my heirs.
    “In witness whereof I have hereunto set my hand and seal this eighteenth day of September, in the year of our Lord one thousand eight hundred and fifty-six.
    “ThoMAs S. Christophers, [seal.]
    “Sealed and delivered in the presence of—
    “Walter Sedgwick.
    “James E. Weed.”
    “ Recorded in the office for recording deeds, etc., for the city and county of Philadelphia, in letter of attorney book R>. D. W. No. 2, page 609, etc.
    “Witness my hand and seal of office, this twenty-second day of July, A. D. 1857.
    “ [seal.] R. D. Wilkinson, Recorder.”
    
    “Schuylkill County, ss:
    
    “ On the twenty-second day of December, anno Domini 1856, before me, the subscriber, one of the justices of the peace in and for the county aforesaid, personally appeared before me Thomas S. Christophers, and in due form of law acknowledges the within instrument of writing to be his act and deed, and desires the same might be recorded as such.
    “Witness my hand and seal the day and year aforesaid.
    “Isaac Severn, J. P. [seal.]”
    “Commonwealth oe Pennsylvania,
    
      “Schuylkill Oounty, ss:
    
    “I, Samuel Huntzinger, prothonotary of the court of common pleas of Schuylkill Oounty, in the State of Pennsylvania, United States of America, do hereby certify that Isaac Severn, esquire, before whom the foregoing power of attorney or instrument of writing was acknowledged, was at the time of taking-said acknowledgment, and now is, an acting justice of the peace in and for the said county, having been duly elected, commissioned, and qualified, and as such is authorized to take the acknowledgment of deeds and other instruments in writing according to law, and that the signature of Isaac Severn to the foregoing instrument in writing I believe to be in his own handwriting.
    “ In testimony whereof I have hereunto set my hand and affixed the seal of the said court, at Pottsville, this eighteenth day of July, A. D. 1857.
    “ Samuel Huntzingker, ProWy.”
    “Memorandum of an agreement made and entered into the 18th day of September, A. D. 1856, between John C. Lessig, of the borough of Pottsville, Schuylkill County, Pennsylvania, and Thomas S. Christophers, of the city of New York, gentlemen:
    “Whereas the said Thomas S. Christophers hath this day, for good and valuable considerations, granted, bargained, sold, transferred, assigned, set over, and conveyed unto the said John C. Lessig a certain claim against the United States for compensation for loss and damage arising out of the illegal seizure, capture, and forfeiture of the ship Canges by the French Republic in or about the year 1798;
    “And whereas the said Thomas S. Christophers hath this day-, in performance of his covenants,- delivered unto the said John C. Lessig certain documents purporting to be the evidences, vouchers, and records necessary to establish the said claim:
    “Now, this agreement witnesseth that for and in consideration of the premises and the meaning of these presents is, that on the recovery of the moneys alleged to be recoverable on said claim, that he, the said John C. Lessig, will pay unto the said Thomas S. Christophers the just and full sum of ten thousand dollars in cash. And this agreement further witnesseth that from and after the day and date hereof the said John O. Lessig will pay unto the said Thomas S. Christophers the sum of ten dollars at the expiration of each day and every week until such recovery be had, but such payments shall not be accounted as part of or be deducted from the said sum of ten thousand dollars.
    “Nevertheless, it is mutually agreed and understood that at any time hereafter the said John O. Lessig may, on surrendering to the said Thomas S. Christophers all papers appertaining to said claims that he, the said John C. Lessig, may have received or may hereafter receive from Thomas S. Christophers; and cancelling the said bill of sale of the said claim herein-before referred to, that then and in that event all liability to pay tbe said ten dollars per week, or the said ten thousand dollars, or any part thereof, shall then and thenceforth cease, end, and determine, and this instrument and all obligations arising under the same, whether the same be expressed or implied, shall be null and void.
    “It is mutually understood and agreed that this agreement shall apply to and be binding on the heirs and assigns of the respective parties.
    “In witness whereof the parties hereto have interchangeably set their hands and seals the day and year first above written.
    “JOHN C. Lessig-. - [seal.
    “Thos. S. Gi-ieistophees. [seal.'
    “Sealed and delivered in the presence of—
    “Waltee Sedgwick.
    “James E. Weed.”
    “Whereas the above agreement, dated on the 18th day of September, 1856, between John O. Lessig and Thomas S. Chris-tophers in relation to a certain French spoliation claim against the U. S. Government, is this day cancelled by the agreement of both parties, and from and after this date John C. Lessig is to have and do with the said claim and to dispose of the same to the best mutual advantage, and the said Thomas S. Chris-tophers is to receive the one-lialf of all monies that may be collected out of said claim after the necessary expenses are paid, by the agreement of both parties. And it is further agreed that if the said Jno. C. Lessig should? dispose of his interest in the "claim he can not sell more than the one-half, and the purchaser is to go on with the claim the same as the said Lessig. Also all monies and expenses that the said Jno. C. Lessig has expended up to this date is to be no charge against the said Thomas S. Christophers.
    “Pottsville, August 28th, 1858.
    “.John C. Lessig. [seal.'
    “Thos. S. Oheistophees. [seal.'
    “Witnesses present—
    “ Waltee Sedgwick.
    “ John A. Lessig.
    “(Endorsement:) Agreement. John O. Lessigwith Thomas S. Christophers. Sept. 18, 1856.”
    It does not appear that Lessig has taken any action under this agreement.
    At the time of the condemnation there was due the United States from Charles P. Eogers & Co. for customs duties the sum of $28,244.52.
    
      
      Mr. Charles U. Blair for James C. Hays, administrator and executor.
    
      Mr. James Parker for Richard B. Brown, administrator.
    
      Mr. Bussell Duane for J. B. Yan Wagenen, administrator.
    Jir. Alex. C. Moore and Mr. C. W. Bussell for the defendants.
   Davis, J.,

delivered the opinion of the court:

The Ganges, a merchant vessel of the United States sailing from Batavia to Gothenburg, was forced to put into the Isle de France for repairs in February, 1798, where she was seized, condemned, and sold by the French authorities.. A substantial contest in this case is between the several plaintiffs claiming* title in the vessel. The claim of title is briefly this: Thomas Whippo, Charles P. Rogers, and Thomas Yermilya purchased the vessel in 1795, Whippo taking one-half and Rogers and Yermilya a quarter each. Thomas Whippo soon sold one-half his interest (that is, one quarter of the whole) to his brother Isaac Whippo. Rogers and Yermilya were copartners, doing-business in New York, and as Rogers was about to leave for Europe he gave a broad power of attorney to his partner, Yer-milya. Soon after Thomas Whippo gave similar authority to Yermilya. Thus Yermilya had control of three-quarters of the ship, the one-quarter held by Isaac Whippo being outstanding.

Thereupon Yermilya made an agreement with one Lloyd, wherein he assumed to sell not three-quarters alone, but ‘‘all and every part of the said ship Ganges,” and covenanted that he had £i good right, full power, and lawful authority to bargain, sell, or convey the said ship Ganges.” Upon the same day Lloyd conveyed back to Yermilya all and every part of the said ship Ganges. This brings the date to August 12, 1796. The following 21st of December Isaac Whippo sold his share of the Ganges to Rogers; upon that day, therefore, the apparent title thus stood: Three-quarters in Yermilya, one-quarter in Rogers, and at this point the contention begins between those repre-. senting the respective interests of Rogers and Yermilya. January 30,1797, Yermilya sold the vessel to James Jarvis, selling “all aud every part” as before, but this time he, in fact, could convey the whole, as the powers of attorney from Rogers and Thomas Whippo and his own title put the whole vessel under bis control. With tbe entire legal title thus in Jarvis, tbe vessel started upon ber unfortunate voyage.

It is apparent tliat during tbe period covered by this case tbe firm of Eogers & Yermilya were in financial difficulties. There have been intimations during tbe argument of bad faith upon tbe part of Yermilya, but we find nothing in the record to sustain such a theory; on tbe contrary, he appears to have been struggling well to keep up tbe firm’s credit. Tbe two Whippos, Eogers, and Yermilya were much embarrassed financially, and many things appearing in tbe record not pertinent to this contention show a bard struggle to avoid disaster. Under these circumstances, with Eogers in Europe, Yermilya was thrown upon bis own responsibility, and we have no reason to suppose that be acted other than fairly to bis partner’s interests.

It is contended substantially that tbe sale to Lloyd and back to Yermilya operated for tbe benefit of Eogers, which may be so; but that is unimportant, for it is perfectly clear that when tbe sale was made to Jarvis, Yermilya bad complete control over tbe entire ship in this way: He controlled Eogers’ interest (through tbe power of attorney), and Eogers bad recently bought out Isaac Whippo, so Eogers and Yermilya owned three-quarters of the ship, while Thomas Whippo bad given to Yermilya absolute control of bis, tbe remaining quarter. Thus Jarvis became possessed of tbe absolute legal title in all the-ship, while Eogers and Yermilya pass out of tbe case unless there be equities developed.

While upon its face tbe sale to Jarvis was absolute, in fact tbe vessel was conveyed in trust to protect Jarvis against loss of money owed him by tbe firm. Jarvis, however, entered immediately into control of tbe vessel as tbe owner, and apparently bad other transactions with Eogers & Go., which resulted in a formal declaration of trust made in tbe year 1810. In this instrument be certified that be held tbe conveyance of tbe Ganges in trust for tbe creditors “of Thomas Yermilya and Charles P. Eogers,” subject, however, to certain exceptions and reservations, that is, subject to bis claims against tbe firm and Yermilya, and it further appears in this declaration that any balance which may remain of any sum recovered on account of tbe Ganges, after paying Jarvis bis claims with interest, shall “be for account of tbe creditors of Charles P. Eogers and Thomas Yermilya.” Later we find a declaration from Yermilya that “the ship was in the name of James Jarvis” when captured, “and belongs now [1836] to Mary Ann Jarvis, as the only heir of said James Jarvis, and is her sole property.”

The legal title being thus in Jarvis, what course shall be pursued in relation to the creditors, if any there be? Primarily, it must be noted that no creditors are disclosed other than the United States for unpaid duties. Again, that in the Act of March 3,1891 (1 Supp. to Rev. Stat., 2d ed., p. 925), Congress had indicated the policy in this class of cases of ignoring the creditors of bankrupts when they required us to make the award “on behalf of the nest of kin instead of to assignees in bankruptcy.” What we endeavor to ascertain is “ the person in whom the legal title and custody exists; that is to say, the legal representative who in an ordinary action at law or proceeding in equity would be deemed the proper party to maintain an action for the recovery of similar assets of the original claimants.” (The Jane, 24 C. Cls. R., p. 81.) Jarvis possessed the full title in law to the Ganges. Under certain possible conditions the other creditors of Rogers & Co., then bankrupts, might have a claim upon a recovery herein. Whether those conditions will be fulfilled or who are those creditors or what their interests are is not disclosed. Further, the Christophers who filed a claim herein, who has since died, and to whose estate any sum recovered will go, was the next of kin, not only of Jarvis, but also of Yermilya.

Lastly, Christophers, the son-in-law of Jarvis (and then a widower), in 1856 endeavored to assign his interest in this claim to one Lessig, first upon the consideration, among others, that upon recovery for the Ganges loss, Lessig would pay Christophers $10,000, and from and after the date of the assignment Lessig should pay Christophers “the sum of $10 at the expiration of each day and every week until such recovery be had, but such payments shall not be accounted as part of or be deducted from the said sum of $10,000.”. There was a clause of defeasance in this unusual instrument which Lessig soon took advantage of, and it was then agreed that Lessig should have one-half the claim, should prosecute it, and upon recovery pay Christophers one-half “ after the necessary expenses are paid.” What Ohristophers’s interest in the claim was does not appear. His wife was Jarvis’s daughter, and her sons were tbe beneficiaries .(with, tbeir father) under Yermilya’s will. Whether Mrs. Christophers left a will does not appear, so if the assignment be valid we should be unable to determine from the record before us what interest Christophers had to convey. Further, it does not appear that Lessig fulfilled his agreement.

Eemaudeu to law docket to be heard upon the liability of the United States; also upon the amount alleged to be due the United States.  