
    ESTHER S. BUCHANAN, Administratrix of Buchanan, v. THE UNITED STATES. CUMBERLAND D. HOLLINS, Administrator of Holland, v. THE SAME. ROBERT CARTER SMITH, Administrator of Smith, v. THE SAME. JOHN STEWART, Receiver of Maryland Insurance Company, v. THE SAME.
    [French Spoliations 381, 770, 996, 1003.
    Decided January 14, 1889.]
    
      On the Proofs.
    
    In 1798 the claim accrues in favor of a copartnership. In ,1820 the firm assigns for the benefit of creditors. In 1823 the trustees prosecute similar claims before the Spanish Commission for the benefit of the creditors. This suit is prosecuted by the administratrix of the surviving partner. Neither the trustees nor the creditors appear. The defendants insist that the right to prosecute is in them and not in the claimant.
    I.Under the decisions in Comegysv. Vasse (1 Peters, 193) and G-rayY. The United States (21 C. Cls. R., 304), this court can not determine to whom the money should be distributed which Congress may hereafter award as indemnity in the French Spoliation Cases.
    II.The court doesnot in such cases determine rights or equities; it merely ascertains the legal representative, who would be the proper party to maintain an action for the recovery of similar assets in a court of law or equity.
    III. The court does not determine who were the next of kin of a deceased claimant, nor whether there are any.
    IV. All that the oourt determines in its report to Congress is the validity of a claim against France, its relinquishment by the United States, and the amount thereof.
    V.The decisions in the Spoliation Cases are not judgments which judicially fix the rights of any person; and the obligations are so far moral and political that they can not be gauged by the fixed rules of municipal law.
    VI.After this court has reported a French Spoliation Case, it will be the duty of Congress to determine: 1st. The measure of the indemnity which the United States should give; 2d. The persons who are equitably entitled to participate therein.
    VII.Notwithstanding an assignment for che benefit of creditors, the descendants of the original claimant have an interest in the indemnity fund which Congress may provide, direct or contingent, and may prosecute the claim if the assignees fail to do so.
    
      
      The Reporters’ statement of the cáse:
    The following are the facts as found by the court:
    
      General findings relating to the ship and cargo.
    
    I. The ship Jane, of Baltimore, sailed from Jamaica for that port on the 20th of July, 1798, in company and under .convoy of the British frigate Roebuck. They kept company with the convoy until the sixth day, when a strong current set to leeward. On the 25th the ship bore away and proceeded on her voyage until the 29th of the same month, when, being westward of the Grand Cayennes, she was boarded by the French privateer La Pabo, which took out the captain and five men and sent a prize master and privateersman on board of the ship. She was then taken by the prize crew to Havana, whither the master of the ship was subsequently brought by the privateer. He applied to the.Spanish Government, but could not get the ship restored. She was then taken to Gape Frangois, where she was condemned by the tribunal of commerce, The grounds of condemnation were that the Jane had sailed from Kingston, an English port, laden with rum and sugar, the produce of English possessions, which was contrary to the provisions of certain French decrees. Another ground of condemnation was that the master of the ship said that he was born in England, and that there was nothing on the ship which proved his naturalization, contrary to the French decree respecting the navigation of neutral vessels in time of war. No other ground of condemnation was alleged.
    II. The Jane was a duly registered vessel, measuring 214 tons, built at Baltimore in the year 1790, and owned by John Hollins, of Baltimore, one-half, and by Samuel Smith and James A. Buchanan, of Baltimore, one-half, as appears by the register, June 15th, 1797. John Smith is named in the register as master, but John Wallace was master at the time of capture, and the copy of the register carried by the vessel on which his name as master may have been indorsed was detained by the captors and can not be produced.
    III. The cargo consisted of merchandise belonging to the firm of S. Smith & Buchanan and to Samuel Smith individually, and to one Edmund Suise. Samuel Smith and Smith 8s Buchanan were merchants doing business in Baltimore; Edmund Suise does not appear in these proceedings.
    IV. The value of the ship was.-l. $6,420. 00
    The value of Samuel Smith’s portion of the cargo (7-1G)
    seven-sixteenths. 13,710.34
    The value of Smith & Buchanan’s portion of the cargo,
    seven-sixteenths... 13,710. 34 ’
    The value of Edmund. Suise’s portion of the cargo, two-sixteenths . 3,917.22
    The freight earnings of the vessel for the voyage. 3,424. 00
    Premium of insurance paid on cargo. 3,600. 00
    Amounting in all to. 44,781.90
    
      Special findings relating to the several eases.
    
    Y. In case No. 381. The firm of S. Smith and Buchanan were the owners of one-half of the vessel and of seven-sixteenths of the cargo.
    They had procured insurance for themselves and the other owners of the cargo, to the amount of 120,000 upon the cargo.
    For this insurance the firm of Smith & Buchanan paid as their proportion of the premium $1,560 and subsequently received from the insurers $8,532.13.
    The losses of Smith & Buchanan by reason of the capture of the Jane and her cargo, for which they were entitled to indemnity, are as follows:
    One-laalf of the ship. $3,210.00
    Seven-sixteenths of the cargo. 13,710.34
    One-half of the freight earnings of the vessel.,. 1,712. 00
    Premium paid for insurance.. 1,560. 00
    Amounting in all to. 20,192. 34
    Less received for insurance. 8,532.13
    Leaving amount of losses. 11,660.21
    VI. In case No. 1003. Samuel Smith was the owner of seven-sixteenths of the cargo.
    He had procured insurance through the firm of Smith & Buchanan as set forth in the preceding finding, and had paid as his proportion of the premium $1,560. He subsequently received from the insurers $8,532.13.
    The losses of Samuel Smith by reason of the capture of the cargo of the Jane, for which he was individually entitled to indemnity, are as follows:
    Seven-sixteenths of the cargo. $13,710.34
    Premium paid for insurance. 1,560. 00
    Amounting in all to. 15,270.34
    Less received for jnsurance. 8,532.13
    Leaving amount of losses. 6,738.21
    VII.In case No. 770. John Hollins was the owner of one-half of the vessel.
    The losses of John Hollins by reason of the capture of the Jane, for which he was entitled to indemnity, are as follows:
    One-half of the ship.. $3,210.00
    One-half of the freight earnings of the vessel. 1,712. 00
    Amounting in all to. 4,922. 00
    VIII. In case No. 996. The Maryland Insurance Company was, in 1797, a corporation duly organized under, the laws of the State of Maryland, authorized to carry on the business of marine insurance. On the 20th December, 1797, it issued a policy of insurance to the firm of S. Smith & Buchanan, for themselves and other owners of the cargo of the Jane, for a voyage from Baltimore to Hispaniola, and other ports, and return. Upon this policy the Company subsequently paid to the owners of the cargo for the capture of the Jane, as set forth in finding I, the sum of $19,502, and the owners abandoned the cargo to the insurers as a total loss.
    The losses of the Maryland Insurance Company, by reason of the capture of the Jane and her cargo, amounted to $19,-502.
    IX. In caseNo. 996. The claimant, John Stewart, ou the 23d day of January, 1886, was appointed by the Circuit Court of Baltimore, Md., receiver of the Maryland Insurance Company, with authority to collect the outstanding debts due to the company, and especially the claims against the United States, commonly known and described as the French spoliation claims. It does not appear whether the persons for whose benefit the said Stewart was appointed receiver were the stockholders of the company and their personal representatives, or the creditors of the company and their personal representatives.
    X. In case No. 381 and case 1003. It appears that on the 27th September, 1820, Samuel Smith executed a deed of trust to Thomas Ellicott and Jonathan Meredith, and that the firm of Samuel Smith & Buchanan, on the 9th November, 1820, also executed a deed of trust to the same persons for the benefit of creditors, whereby their claims for the capture of the Jane were conveyed to those trustees. In 1823 the trustees presented a memorial to the Commission under the treaty with Spain of 22 February, 1819, whereby they sought to recover the losses of Samuel Smith and Smith & Buchanan, and wherein they represented that “since the time when the deeds of trust before mentioned took place” the claims belonged to them, the memorialists, and, if allowed, would go “absolutely and solely to your memorialist for the benefit of the creditors of said S. Smith and S. Smith & Buchanan,” which memorial was verified by the oath of Samuel Smith. Neither Samuel Smith nor Smith & Buchanan presented a claim to the Spanish Commission. It does not appear that their respective indebtednesses have been discharged, unless the same be presumed from lapse of time; nor that the claims have been re-assigned to them.
    One Gilmore Meredith, representing himself to be the person who is by law entitled by succession to represent the interests of the trustees under the deed of trust above mentioned, has filed a consent in case No. 381, that the proceedings instituted by Esther S. Buchanan, administratrix, be conducted to judgment, he reserving, however, the right to ’make claim for the proceeds of the judgment against her, the administratrix and personal representative of the survivor of the firm of Smith & Buchanan, when the same shall have been paid to her, in the Orphans’ Court of Baltimore. But it does not appear in what manner or by what authority the succession of the said trustees became vested in said Gilmore Meredith, nor that he has lawful authority to give such consent or enter into such arrangement.
    XI. In case No. 381. William B. Buchanan was the surviving partner of the firm of S. Smith & Buchanan. The claimant,. Esther S. Buchanan, has produced letters of administration for the estate of William B. Buchanan, deceased; and has otherwise proved to the satisfaction of the court that the person of whose estate she is administratix was the same person who was au owner of the Jane and her cargo in 1798, and a citizen of the United States.
    
      XII. In case No. 1003. Tbe claimant, Eobert Carter Smith, has produced letters of administration for the estate of Samuel Smith, deceased, and has otherwise proved to the satisfaction of the court that Samuel Smith, of whose estate he is administrator, was the same person who was an owner of the Jane and her cargo in 1798, and a citizen of the United States.
    XIII. In case No. 770. The claimant, Cumberland D. Hol-lins, has produced letters of administration for the estate of John Hollins, deceased, and has otherwise proved to the satisfaction of the court that the person of whose estate he is administrator was the same person who was an owner of the Jane in 1798, and a citizen of the United States.
    XIY. Said claims were not embraced in the convention between the United States and the Bepublie of France, cun-eluded on the 30th of April, 1803, and were not claims growing out of the acts of France, allowed and paid in whole or in part under the provisions of the treaty between the United States and Spain, concluded on the 22d of February, 1819, and were not allowed in whole or in part under the provisions of the treaty between the United States and France of the 4th of July, 1831.
    The claimants, in their representative capacity, are the owners of said claim which have never been assigned except as aforesaid.
    
      Mr. Benjamin Wilson and Mr. G. W. Russell for the defendants.
    
      Mr. William R. Marie for the claimants.
   Nott, J.,

delivered the opinion of the court:

The Supreme Court in the case of Gomegys v. Vasse (1 Peters, 193) held m regard to the commissioners sitting under the treaty of Spain of 1819:

They had no authority to compel parties asserting conflicting interests to appear and litigate before them, nor to summon witnesses to establish or repel such interests ■, and under such circumstances it can not be presumed that it was the intention of either Government to clothe them with an authority so summary and conclusive, with means so little adapted to the attainment of the ends of a substantial justice. The validity and amount of the claim being once ascertained by their award, the-fund might well be permitted to pass into the hands of any claimant; and his own rights, as well as those of a.ll others who asserted a title to the fund, be left to the ordinary course of judicial proceedings in the established courts, where redress could be administered according to the nature and extent of the rights or equities of all the parties.’

' And this court when defining its powers under the kindred statute which confers the jurisdiction of these French spoliation claims (Gray’s Case, 21 C. Cls. R., 340, 405) said:

“We can not agree that Congress intended this court to perform what is in effect a physical impossibility and to throw upon us the task of probate courts in the investigation of the rights of thousands of descendants and devisees of the original claimants, who are now scattered, in all human probability, to the four quarters of the globe. To ask this court to go back to the year 1800 and follow from that time down the succession of every then existing claimant is to ask us to do that which under our jurisdiction and powers would be an impossibility. A much more reasonable interpretation of the act appears upon its face, and applying that interpretation to this case we have found that the claimant, as administrator of the owner of the schooner Sally, is the owner of the claim. We consider it no part of our duty under the statute to place ourselves in the position of a court of probate and report to Congress the manner in which any ultimate recovery should, under the laws of the thirty-eight States and eight Territories of this Union, be distributed among the numerous next of kin or devisees of the original claimants and their descendants.”

Since that decision was rendered in the initial case a great number of cases have come before the court, representing hundreds of beneficiaries, and all that has transpired has demonstrated the wisdom, and indeed the necessity, of that conclu-sión.

The youngest of these claims are now more than eighty-eight years old. The original claimants were merchants, ship-owners, underwriters, partners in trade, joint-stock associations, and incorporated insurance companies. ■ Only three of the original claimants have thus far appeared, and they, it is needless to say, are bodies corporate. The individuals who lost by French spoliations were generally men of mature years. Some transferred their claims; others became insolvent, and their assets passed to assignees in bankruptcy or became subject to the operation of divers State insolvent laws ; some bequeathed their claims by will; some died intestate of them; all have long since passed away. Those claims which passed to assignees in bankruptcy have not remained in the hands of living witnesses, for those assignees have died, and their claims have passed to their administrators, who have, in many cases, likewise died, and such claims have again changed hands and passed to the administrators of the administrators. The partnerships were long ago dissolved, leaving the assets in the custody of the surviving partners, and they have long since died, leaving their administrators to represent both their own nest of kin and the next of kin of the other partners. The joint-stock associations have been wound up or merged in incorporated companies, leaving behind them obscure questions as to whether the claims passed to the new companies, or reverted to the original shareholders, or vested in the survivor of them for the benefit of all. A majority of the incorporated companies have likewise ceased to exist, and their claims are in the hands of receivers either for ihe benefit of creditors or of stockholders. Then again, many, if not all, of such creditors and stockholders have died or become insolvent and their interests have passed into the hands of other administrators and assignees in bankruptcy.

Into this labyrinth of unknown and unascertainable rights and equities the court has not attempted to enter. What it has endeavored to do is to ascertain the person in whom the legal title and custody exist; that is to say, the legal representative who in an ordinary suit 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. In the cases of individual owners or underwriters the court has required a present claimant to file his letters of administration and prove to the satisfaction of the court that the decedent whose estate he has administered was the same person who suffered loss through the capture of a vessel. (The Ship Betsey, 23 C. Cls. R.., 277.) In cases of partnership the court has required evidence of survivorship, and has allowed only the administrator of the survivor to prosecute the claim. In cases of bankruptcy, it has held, under the decisions of the' Supreme Court, that the claim passed to the assignee, and that on his death it passed to his administrator (Erwin’s Case, 97 U. S. R., 392; Richards v. Maryland Insurance Company, 8 Grancb., 84), and where the evidence has shown the bankrupt estate to be still unsettled,' the court has held the legal title to be still vested in the assignee. In oases of incorporated companies no longer in existence, the court has required only the decree of a court of competent jurisdiction transferring their rights of action to the hands of a receiver.

In none of these cases has the court assumed to determine who were the next of kin of a deceased claimant; nor whether there are any; nor in what proportion were the several interests of partnership owners; nor whether creditors or descendants have the superior equity; nor whether the children of a bankrupt are entitled to a residue of his estate; nor whether the receiver of a defunct corporation represents creditors or stockholders. In other words, the court has not assumed to determine what persons are legally or equitably entitled to receive the money which Congress may hereafter appropriate for the discharge of these claims.

When the validity of a claim against France and the relin- • quishment thereof by the United States under the second article of the treaty of 1800, and the amount in which the original claimant suffered loss, have been determined and reported, Congress will be in possession of all the facts which this court under its present restricted jurisdiction can possibly furnish. It will then be within the legislative discretion (1) to ascertain through the proper committees who are the persons who should receive the money, or (2) to provide for the ascertainment of that fact by additional legislation, or (3) to confide the money to the administrators and receivers who, with the exception of a few still-existing corporations, constitute the present claimants, trusting that they and the courts of which they are the officers and agents will distribute the funds among the creditors or next of kin of the original claimants. The decisions in these spoliation cases are not judgments which judicially fix the rights of any person ; and the obligations of the Government are so far moral and political that they can not be gauged by the fixed rules of municipal law for the measure of legal damages. When the validity of a claim as against France and the amount-of the losses which an American citizen suffered by her privateers have been determined, the court can render no further assistance to the legislative branch of the Government, and it will still remain the duty of Congress to determine two things — first, the measure of the indemnity for which the United States should be held responsible; second, the persons who are equitably entitled to receive it.

The facts in the present case differ somewhat from the illustrative cases which have been cited. In. 1798 the firm of Smith & Buchanan were merchants and ship-owners, doing business in Baltimore, and sufferers by the depredations of the French privateers. In time the partnership was dissolved, whether by bankruptcy or by the death of the senior partner is one of the questions in the case. But be that as it may, in 1820 Samuel Smith, for himself and the firm of Smith & Buchanan, executed deeds of trust to Thomas Ellieott and Jonathan Meredith for the benefit of their creditors, whereby their claims for the capture of the Jane and her cargo passed to the trustees. In 1823, all of the parties to the transaction being alive, that is to say, both of the partners and both of the trustees, the latter presented a memorial for relief to the Spanish Commission, in which they alleged thatsince the time when the deeds of trust before mentioned took place ” the claims belong to them, the memorialists, and, if allowed, would go “ absolutely and solely” to them “for the benefit of the creditors.” Neither' Samuel Smith, on his own behalf, nor the firm of Smith & Buchanan preferred a claim to the commission, nor controverted the right and title of the trustees. Moreover, the senior partner of the firm verified the memorial by his own affidavit. Since then nothing has transpired save lapse of time.

Whether lapse of time in such a case should operate to discharge the debts of Smith & Buchanan and divest the legal title to the claim out of the trustees and vest it again in the assignors, so as to enable them or their proper representatives to maintain an action, is a question of law which has been argued with ability arid zeal by the counsel of those representatives. On the other hand, it has been maintained by the counsel for the United States that lapse of time in equitable proceedings, like the present, should not operate to extinguish the just rights of creditors, and that the trustees in any event hold the legal title, and should recover, if any one does, for whom it may concern.

If there were a contesting claimant before the court seeking to recover as the representative of the trustees for the benefit of the creditors, the court would be obliged to pass upon the question definitely by determining which was the proper party to prosecute the claim ; and, if the court bad general equity jurisdiction with power to adjudicate the rights of parties, it would be its duty to have the trustees or their representatives brought in as party defendant, so as to be bound by a final decree ; but the abstract opinion of the court will not determine the rights of parties; and in this proceeding neither trustee nor creditor has appeared to assert a right or to prosecute the claim. The descendants of the original claimants have certainly a contingent if not a direct interest in the indemnity fund, and it would manifestly be a great injustice to them to exclude them from the consideration of Congress because the trustees and creditors of their ancestors have not seen fit to appear and have slept upon their rights or abandoned their trust.

Therefore the court will not by a summary order dismiss the case, but, on the contrary, will spread all of the facts relating to the title upon the record and submit them to the consideration of Congress.

The order of the court is that the findings now filed in these cases be reported to Congress.  