the existence of. the certificates until the day of trial. The fltock having been delivered,and the money having been paid to obtain a release, it is obvious that the bank had no right to retain the consideration, and deal with iUn the manner shown, unless it ratified the release. It certainly ha4 po ,right to constitute itself an agent of the defendant to collect dividends on the stock, and hold the same for his account, or to issue a certificate therefor in the name of his wife; and its attempt to assume that relation, without authority from the defendant, puts it in no better than it woul.dhave occupied if certificates of deposit had not been executed. Its plain duty was to restore the stock, and refund the money, which had been paid as the consideration for the release, or, at least, to have made a tender of the money and stock when the compromise As the bank gave the defendant no notice that its board had rejected the offer of comJ)romise, and in the mean time, for a period of nearly Seven years, dealt with the consideration as its own, merel)'adopting the thin disguise of making out certificates of deposit to represent moneys received, which it did not even tender to the defendInust ,be held that by its acts it has as effectually ratified the agreement made by its president as it could have done by a formal resolution of its board of directors. Judgment is accordingly entered for the defendllnt.
,GRAFFLINf. NEVASSA PHOSPHATE
OF NEW YORK, (DUNCAN,
(OVrcuit (ftw,'I't, D. Ma'l'1fland.
L 'Down.....1N GUAJ.'iO.lBLAND-ACT AVG. 18, 1856. , Held, that the 'act ,of' congress approved August 18. 1856, authorizing protection to be given to ci'tizens of the United States who may discover deposits of- guano,' (Rev., 8t.tit. 72, "Guano Islands.") does not confer upon the discoverer a title to the land of the island such as Will entitle his widow to dower therein as against a purchaser from him, although she has not joined in his asslgnment,or executed a release.
.. SAKE-NATURE OF RIGHT GRANTED DISCOVERER.
Held, that the riltht recognized in the discoverer an<l his assigns by ,the act of congress is not a as propritltor of the soil, but merely a commercial - privilege. bywhlch the enterprise of obtaining the guano discovered on such islands is protected.' so that It may be obtained for shipment to the United States, or elsewhere,·if permitted (8gllali'u8 b31 tlu· OO'UrL)
In the Matter of the Petition of .Isabella Duncan, widow of Capt. Peter J)uncan, to have dower in the Island of Nevassa assigned to her,or tobe allowed gr()!lS sum as a commutation of the same· .D, Eldridge ¥onroe and Victor Smith, for petitioner. S. T. WaUis, e<mtra.
MQRRIS, J·. This petition is filed in a case in which, upon the application of certain stockholders, ,the, ?ourt has appointed receivers of the
GRAFFLIN't1. NEVASSA'PHOSPHATE 00.
property of the Nevassa Phosphate'Company of New York, for the purpose of paying its debts and administering its property for the benefit of its creditOrs and stockholders. The petitioner alleges that in 1857, her la,te husband, Peter Duncan, discovered a deposit of guano on an island called "Nevassa" in tp.e Caribbean sea, not within the lawful jurisdiction of any government, and took possession thereof, and filed his claim thereto with the state department of the United States, in accordancewith the act of congress approved August' 18, (11 St. at Large, p. 119,) and afterwards furnished to the state department evidence of his .discovery,'occupation, and peaceable possession, whereupon his assignee was declared to be entitled to the rights intended to be secured by said aet of congress. That after remaining in possession of said island from September 19, 1857, to November 18, 1857, which was during the coverture of the petitioner, her said husband conveyed his title and interest in said island to one Cooper, and by mesne assignments the title to said island has become vested in the Nevassa Phosphate Company of New York, which now holds it under the title of her late husband. That petitioner never joined in any deed of said island, or in manner released her dower therein; and she claims that under the said act of congress the United States has assumed jurisdiction of said islandlt and that a heritable estate therein vested in her husband, and that, upon his death, which occurred in the year 1875, she became entitled to her dower therein. _To this petition the receivers have demurred, and contend that the interest of Peter Duncan in the island of Nevassa was not such as would give his widow any right of dower,'and that there was no government having territorial jurisdiction of the island to whose laws the petitioner could appeal in support of her alleged right. , Looking to the language and purpose of the act of congress, which is entitled "An act to authorize protection to be given to citizens of the United States who may discover deposits of guano," we find nothing which indicates that it was the intention of congress to claim title to or to recognize in the discoverer, who was to be protecteJ in the exclusive occupancy of the island for the purpose of obtaining and shipping guano therefrom, any title to the land; on the contrary, the provisions of the law entirely negative any idea that such islands were in any sense to become part of the territorial domain of the United States. It is clear that the United States extends its protection to the discoverer and· his assigns solely to enable him to obtain the guano. The act of congress does not authorize or countenance the establishment of any form of governmental authority or local tribunal; it does not look to colonization or permanent settlement. It treats these islands, as in fact they are, as unsuited 'for permanent settlement by civilized communities, and as only temporarily occupied for the purpose of obtaining the guano. In order that while thus temporarily occupied by citizens of the United States the occupants may not be without some lawful means of suppressing disorders, tht' act provides that all ?ffenses or crimes committed by persons who may land on any such island or in the waters adjacent thereto shall be deemed to have been committed on the high seas on board a mer-
chant vessel of the United States, and be punished according to the laws of the United States relating to such vessels and offenses on the high seas. .It seems to us impossible to escape the conclusion that all, that was intended was to afford governmental sanction and protection to the exercise of a commercial privilege, by which guano might be obtained and furnished for the use of agriculture in the United States; and it does not seem to us maintainable that, by extending this sort of protection for this purpose to an enterprise to be carried on upon small, uninhabit'able coral islands in remote seas, the act of congress extended to them the common-law docrines applicable to heritable estates in land in highly civilized communities, including the widow's right of dower in lands of her husbanJ, disposed of by, him in his life-time without her concurrence. Dower is always dependent upon the lex loci rei sitw, and it is obvious that no system of law has ever been established on the island of Nevassa, except so fiu all, for the punishment of offenses by those temporarily occupying it, the maritime law with regard to offenses upon ships of the United States has been made applicable to it. No analogy, such as counsel have suggested, it seems to us, can properly be drawn applicable to these islands from the titles to lands in the northwest territorial domain of United States, or the policy established with regard to them by the ordinance of 1787. That whole ordinance looked to the early settlement and ownership of the land by citizens of the United States, and to the establishment of permanent local governments by the persons who should become resident proprietors of the soil. In the case of these islands there is no ownership of the soil, except that of mere occupancy t and no patent or grant emanates from the United States to the occupant, nor anything approaching to it in character. The act of congress recognizes the assigns of t.he discoverer as succeeding to his rights, and by the act of April 2, 1872, (17 St. at Large, c. 81, p. 48,) the provisions of the original.act are extended to the widow, heirs, executors, and administrat()rs of the discoverer when he shall have died before perfecting his proof of discovery, or fully complying with the other provisions of the law. This legislation is far from establishing a right of dower in the widow. The widow, it is true, is mentioned; but by mentioning also executors and administrators the law negatives the idea of an estatein realty, and by mentioning all the persons who might by any law of cession be entitle<l to any property of a decedent, it merely provides that any such person being entitled would be recognized as standing in the place of the deceased discoverer. The use of the words, "widow, heirs, executors, or admiJ;l.istrators," does not import that congress intended to legislate that the discoverer's right was to be regarded either as realty or pers.onalty, but that whoever by the law of succession governing the decedent's estate might be entitled should be recognized. There is a proviso to this act of April 2, 1872, which is in these words: "Provided that nothing herein contained shall be held to impair any rights of discovety or any assignment by a discoverer her\ltofore recognized by the government of the United States." So that, if by mentioning the widow in the act of April 2, 1872, it could be maintained that additional
WASHINGTON FIRE & MARINE INS.
right or estate was conceded to her, it could not aid the petitioner in this case, as it is alleged in the petition that the government did before the passage of that act recognize the assignment by Peter Duncan to Cooper, and declared his assignee to be entitled to the rights l:lecured by the law. In our judgment the demurrer must be sustained, arid t4& petition dismissed.
MARINE INS. Co. tl. CHESEBRO.
(Circuit Court, D. Connecticut. September Term, 1887.)
PRINCIPAL .AND AGENT-LIABILITY OF AGENT TO PRINCIPAL.
Defendant, the agent of plaintiff, an insurance company, effected an insurance,and informed plaintiff thereof. upon which plaintiff, being dissatisfied, directed defendant to return the policy at once, saying- that the risk was a prohibited one. Defendant, believing plaintiff misinformed as to the risk, so wrote, and held the policy. Plaintiff again directed the policy returned, which defendant did, but before notifying the insured thereof a loss by fire occurred which plilintiff was compelled to pay. Held, that defendant's disobedience of rendered him liable for the amount plaintiff had been compelled to pay.
At Law. Action by the Washington Fire and Marine Insurance Company against Charles E. Chesebro, its agent, for negligence and disobedience of orders, whereby the plaintiff had been compelled to pay a loss. It appeared that plaintiff had ordered the insurance canceled, the policy still being in defendant's hands, as soon as they were informed of its having been effected, saying: "Please at once relieve us of the risk. The property in itself, and the exposure to the same, would make it prohibited with us. Let us have the policy, please, by return mail." The defendant, thinking the company misinformed as the riJk, so wrote, and stated that he would hold. the policy, which he had not yet written, until further orders from them. Immediately on receipt plaintiff again instructed defendant to return the policy, which he did. Before defendant notified the insured of the cancellation, the property was burned, and plaintiff paid the loss. Defendant claimed that he did not receive the last letter until the day the building burned, and, owing to the absence of the owners, could not noti1y them, and offered evidence tending to prove this fad. Plaintiff offered evidence to prove that the letter should in due course of mail .have been received two or three days before the fire, and that in fact the letter from defendant containing the policy was received by them before the fire. Defendant's reason for believing plaintiff misinformed as to the risk was that the map of the village showed an exposure to an iron foundry, which no longer existed. After the jury were instructed as stated in the opinion, they found for plaintiff the sum of $1,5:48.43'1 the full amount of the loss paid, with interest and costs. A. P. Hyde; for plaintiff.