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sau. The hides in that case would have lost their character as hides.

As to the second question. This assumes that the master could have repaired his vessel. The question of cost is not involved. Was it not his duty to send on the cargo? If the other side are right, it is always in the power of the assured to bind us by stopping short, when we would not have been responsible if the cargo had been carried on. The agency of the master only begins when the liability of the underwriters is absolutely fixed. The law is settled in England, New York, Louisiana, and in this court. If the cargo remains, specifically, the underwriters cannot be held responsible for a total loss upon memorandum articles. 3 Caines. 108; 1 Johns. 305; 3 Johns. 328; 14 Johns. 139, 143, 144, 145; 23 Peck, 405-409, 412, 414-416; 4 Barn. & Cress. 366; 3 Kent's Com. 210, 212, 213; 36 Com. Law. Rep. 157, or 9 Adolph. & Ellis, 314, cites the above from Kent, with approbation; 3 Mason, 429, 440; 16 East, 214, overrules 5 East.

The owner of the cargo is bound to pay freight if the cargo arrives, no matter how much injured it may be. On memorandum articles, the underwriters are not responsible for anything but a total loss. The policy contains such a clause, and no one has a right to strike it out. But the question supposes a discretion to exist in the master, to act for the benefit of all parties. But how can he do so when their interests are contradictory? If he could have gone on, then a loss of freight has occurred, not from the perils of the sea, but from the conduct of the master. If he has acted for the benefit of the owners of the cargo, that is nothing to us. We only insured that freight should be earned, not that it should be actually received. It might have been for the interest of the owner of the ship and the owner of the cargo to terminate the voyage at Nassau. But it was not for our interest, and we cannot be bound by the act.

Third question. Was it a round voyage? We rely on 2 Starkie, 573; 3 Com. Law Rep. 408.

vi. Nelson, for the plaintiffs, in reply and conclusion:

I admit that, if the loss was not total, we cannot recover. But the proposition is a surprising one, which asserts that an article can be totally valueless in point of fact, and yet not be a total loss in point of law. The object of all contracts of insurance is to preserve property, and here its value is admitted to be entirely destroyed. There is no adjudged case which sanctions such a doctrine. I speak not of the language used by courts, but of points decided. It has never been before this court. 603*] *We do not assert that a loss of a part can be considered a total loss. In 7 Johns. Ch. 415, the loss of a part of the hides was held to be a partial loss. This is settled law in the United States. Massachusetts has followed it. But it is not our question. In 8 Cranch, 47, it is said that nothing short of physical extinction or extinction in value will justify an abandonment of memorandum articles; but it is not settled whether extinction in value will be sufficient. 1 Wheaton, 219, is not like our case. The vessel there did not put into any port of distress, but arrived at her destination.

In the New York cases, the language of the judges is strong, but the cases themselves are distinguishable from ours. [Mr. Nelson here remarked upon the case of Griswold v. New York Ins. Co. in 1 Johnson, and again reported in 3 Johnson, and also upon the case in 14 Johnson.]

These New York cases rest upon a dictum of Lord Mansfield, which has been overruled again and again. [Mr. Nelson then examined all the cases in chronological order, viz.: Park on Insurance, 253; same book, 247; Cocking v. Fraser, 4 Doug. 295; 7 T. R. 218-where the first doubt of Cocking v. Fraser was expressed by Lord Kenyon, Park on Ins. 252; Dyson v. Rowcroft, 3 Bos. & Pull. 474-where it is said that Cocking v. Fraser is much shaken; 15 East; 16 East, 214; 17 Com. Law Rep. 408, 409, or 9 Barn. & Cress. 411; and the case of Roux v. Salvador, which came up twice, 27 Com. Law Rep. 481 or 1 Bing. N. C. 526, and 32 Com. Law Rep. 115; 5 Maule & Selw. 447.]

The English authorities appear to settle the point, that, if the value of an article is destroyed, it is a total loss. This opinion is fortified by Stevens and Benecke on Average, p. 435.

The New York cases rely upon Cocking v. Fraser. There is a learned argument on the subject in 14 Conn. Rep. 47.

As to the second question. It is, that, assuming a power to transship when the articles were damaged, whether an insurance upon freight can be recovered, it being granted that the cargo was insured and that it was for the interest of all parties to sell. The opposite counsel says that 23 Pickering closes this case. But I think not. [Mr. Nelson commented on the authority.] The question to be settled is, What ought the master to do? The authorities read by Mr. Mayer have not been answered. They show that where the master is in the double situation of protector of the ship and cargo, he must act with a sound discretion. Another point open upon the record is, that the vessel was in the hands of the law. The vessel entered the port on the 22d of June, and was sold on the 1st of July. The goods were taken from the control of the master and placed in custody *of the law. The sale [*604 was a judicial one, and the captain only did what his duty required.

As to the third question. This very point is decided in 12 Wheat. 383.

Mr. Justice Nelson delivered the opinion of the court, after reading the statement prefixed to this report:

The first point certified, upon the assumptions stated, involves the question, whether the underwriter of a policy upon freight of goods warranted free from average is liable, as for a total loss, unless the goods be actually destroyed by one of the perils insured against, so as to be incapable of shipment to the port of destination; or whether a total loss may result at the port of distress from the goods having been so much damaged, that, if sent on, they would become of no value at the time they reached the port of destination: and hence, instead of being sent on, may be sold for the benefit of whom it may concern.

The contract of insurance upon freight is,

that the goods shall arrive at the port of delivery notwithstanding the perils insured against; and that, if they fail thus to arrive, and the owner is thereby unable to earn his freight, the underwriter will make it good.

It does not undertake that the goods shall be delivered in a sound or merchantable state, or that the vessel in which they are shipped shall be safe against the dangers of the sea, but that it shall be in the power of the insured to earn his freight; that is, that the perils insured against shall not prevent the ship from earning full freight for the assured in that voyage. If the ship and cargo remain, notwithstanding the disasters, in a condition to continue the voyage, it is in his power to earn freight, and he is bound to proceed; but if damage happens to either, and the voyage is broken up, so that no freight can be earned, the owner is entitled to recover, as for a total or partial loss, according as he may or may not have earned freight pro rata itineris.

If the damage happens to the vessel, and that can be repaired at the port of distress in a reasonable time, and at a reasonable expense, it is the duty of the owner to make the repairs, and to continue the voyage and earn his freight; and, on the other hand, if the damage happens to the goods, and the ship be in a capacity to proceed, or, if disabled, another can be procured upon reasonable terms, the owner of the ship will still be entitled to perform the voyage and recover his freight, unless the goods have been totally destroyed. In every case, before he can recover of the underwriter, he must 605*] show that he was prevented by one of the perils insured against from completing the voyage, and, for that reason, had failed to entitle himself to freight from the shippers.

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and in that condition are capable of being shipped to the destined port, there cannot be a total loss of the article, whatever may be tho extent of the damage, so as to subject the underwriter. The loss is but partial. The cases are numerous on the subject, and will be found collected in Park on Marine Ins. ch. 6, subd. 13, p. 247; 2 Phillips on Ins. ch. 18, p. 483; and 3 Kent's Com. 295, 296. It would be useless to refer more particularly to them.

The only doubt that has been expressed in respect to the soundness of this rule is, whether a destruction in value for all the purposes of the adventure, so that the objects of the voyage were no longer worth pursuing, should not be regarded as a total loss within the memorandum clause, as well as a destruction in specie. But although this has been suggested in several cases in England as a proper qualification, and as coming within the obligation of the underwriter, there is no case to be found in which the suggestion has received the sanction of judicial authority.

V.

In this country the rule has been uniform, that there must be a destruction of the [*606 article in specie, as will be seen by a reference to the following authorities: Maggrath Church, 1 Caines, 196, Neilson v. Col. Ins. Co. 3 Ib. 108; Le Roy v. Gouverneur, 1 Johns. Cas. 226, Griswold v. New York Ins. Co. 1 Johns. 205, Livingston, J., S. C. 3 Ib. 321, Saltus v. Ocean Ins. Co. 14 Ib. 138; Whitney v. N. Y. Firemen Ins. Co. 18 Ib. 208, Brooke v. Louisiana State Ins. Co. 4 Martin, N. S. 640, S. C. 5 Ib. 530, Morean v. U. S. Ins. Co. 1 Wheat. 219, McGaw v. Ocean Ins. Co. 23 Pick, 405, 3 Sumner, 544; 1 Story, 342.

.

Whether the test of liability is made to depend upon the destruction in specie, or in value, The first point certified to us assumes that would, we are inclined to think, as a general the ship was capable of carrying on the cargo rule, make practically very little, if any, differto the port of delivery notwithstanding the in- ence; for while the goods remain in specie, juries received; and the only question is, wheth- and are capable of being carried on in that coner the cargo was so much damaged, and in such dition to the destined port, it will rarely happen a condition, as to have dispensed with that that on their arrival they will be of no value to duty. the owner or consignee. The proposition asIn the case of memorandum articles, the ex- sumes a complete destruction in value, otherception of particular average excludes a con-wise the uncertainty attending it would be an structive total loss; and, of course, the principle which allows an abandonment where the loss exceeds half the value does not apply. There must be an actual total loss of the goods. The object of the clause is to protect the underwriter from any partial loss on articles of a perishable nature, which are liable to inherent decay and damage, independently of the damage occasioned by the perils insured against; and where it would be difficult, if not impossible, to distinguish between them. In case of a total loss, consequent upon the happening of one of the perils, the whole damage is presumed to have arisen from that cause, and thus all dispute is avoided as to the origin or nature of the loss.

What constitutes a total loss of a memorandum article has been the subject of frequent discussion, both in the courts of England and this country, and in the former of some diversity of opinion; but, in most of the cases, the decisions have been uniform, and the principle governing the question regarded as settled; and that is, so long as the goods have not lost their original character, but remain in specie,

insuperable objection; and, in that view, it may be a question even if the degree of deterioration would not be greater to constitute a total loss than is required under the present rule.

The rule as settled seems preferable, for its certainty and simplicity, and as affording the best security to the underwriter against the strong temptation that may frequently exist, on the part of the master and shipper, to convert a partial into a total loss.

Mr. Park in speaking of the case of Cocking v. Fraser, 4 Doug. 295, a leading one in the establishment of the rule, observes that the wisdom of the decision is apparent; for, otherwise, it would be a constant temptation to the assured, whenever a cargo of this description was likely to reach the port of destination in an unsound state, to throw the loss upon the underwriters, by voluntarily giving up the further prosecution of the voyage, to which they were not liable by the terms of the memorandum. 1 Park, 249.

The rule, it will be observed, as we have stated it, contemplates the arrival of the goods,

or some part of them, in specie, at the port of | delivery; or that they were capable of being shipped to that port in specie. And hence, if the commodity be damaged so that it would not be allowed to remain on board consistently with the health of the crew or safety of the vessel, or if permission be refused to land the same by the public authorities at the port of distress for fear of disease, and, for these and like causes, should, from necessity, be destroyed by being thrown overboard, notwithstanding 607*] the article existed *in specie, and might have been carried on in that condition, there would still be a total loss within the meaning of the policy. In the cases supposed, it is as effectually destroyed by a peril insured against, as if it had gone to the bottom of the sea from the wreck of the ship. The same result follows, also, if the goods be so much damaged as to be incapable of reaching the port of destination in their orginal character.

These principles are either stated in, or are fairly deducible from, several cases, but especially from the cases of Dyson v. Rowcroft, 3 Bos. & Pull. 474, and Roux v. Salvador, 3 Bing. N. C. 266, and S. C. 1 Bing. N. C. 526.

In Roux v. Salvador, in the Exchequer, it was observed that the argument rested upon the position, that, if, at the termination of the risk, the goods remained in specie, however damaged, there was not a total loss; and it was admitted that the position might be just, if, by | the termination of the risk, was meant the arrival of the goods at their place of destination; but that there was a fallacy in applying those words to the termination of the adventure before that period by a peril of the sea, as the object of the policy is to obtain an indemnity for any loss that the assured might sustain by the goods being prevented by the perils of the sea from arriving in safety at the port of destination.

It was also remarked, that, if the goods once damaged by the perils of the sea, and necessarily landed before the termination of the voyage, were, by reason of that damage, in such a state, though the species be not utterly destroyed, that they could not with safety be reshipped into the same or any other vessel-or if it was certain that before the termination of the original voyage the species itself would disappear in any of these cases, the circumstance of their existence in specie at the forced termination of the risk was of no importance.

The jury had found in that case, that the hides were so far damaged by a peril of the sea that they never could have arrived at the port of destination in the form of hides; and as the destruction was not complete when they were taken out of the vessel at the port of distress, they became, in their then condition, a salvage for the benefit of the party who was to sustain the loss.

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been inevitable from the damage received, if it had been reshipped before it could have arrived at Matanzas, the port of destination. The second point certified assumes that the vessel, notwithstanding the disaster, was in a condition to carry on the cargo, or that another could be procured, and the question is, whether the plaintiff is entitled to recover, as for a total loss of freight, if it appeared that it was for the interest of the insured and insurer of the cargo, on account of the damaged condition of the portion sold, that it should have been sold, and not carried on to Matanzas, the port of delivery.

Many of the considerations stated in our examination of the first point certified have a direct application to this one; as it there appears that the interest of the insured, or of the underwriter of the cargo, is not taken into the account, nor in any way regarded in determining whether or not a total loss of the freight has happened from any of the perils insured against, but whether there has been a destruction of the entire cargo in specie, or such damage received as would inevitably prevent the arrival of any portion of it in specie at the destined port.

The interest of the owner of the cargo may frequently be adverse to that of the owner of the ship; for although the goods remain in specie, and in that condition capable of being cårried on, it may be for the interest of the owner, or of the insurer of the cargo, to have it sold in its then damaged state at the intermediate port instead of taking the risk of further deterioration. But, in that case, the owner, or those representing him, must act upon their own responsibility; for, if he elects to receive the goods voluntarily at a place short of the port of destination, he is responsible for the freight. The loss cannot be total or partial at his will, or as his interest may dictate.

It was said in Griswold v. New York Ins. Co. (which was an action on a policy on freight), that whether it would have been wise or foolish in the shipper to have sent on the flour in the condition it was in, was a question not to be put to the plaintiffs. It was none of their concern. The risk of the value of the cargo at the port of delivery lay with the owners of the cargo. All that the plaintiffs had to do by their contract was to provide the means to take on the cargo, by repairing their ship or procuring another.

Other considerations may arise as between the owner and insurer of the cargo, but it is not important now to go into them.

On looking into the facts in this case, it will be seen that the portion of the beef landed at Nassau, and sold, was wet and heated; and that the board of health had recommended to the *authorities, that it should be removed [*609 as soon as it conveniently could be without too In respect to the first point, therefore, the great a sacrifice of the property. It is obvious, court direct that it be certified to the Circuit therefore, that the perishable condition of the Court, that, if the jury find that the jerked article must be taken into consideration in debeef was a perishable article within the mean- ciding upon the obligation of the master, in the ing of the policy, the defendant is not liable as emergency, to repair his vessel, or to procure for a total loss of the freight, unless it appears another, for the purpose of sending it on to the that there was a destruction in specie of the port of delivery. If it should be made to apentire cargo, so that it had lost its original | pear that the repairs or procurement of another character at Nassau, the port of distress, or vessel would necessarily produce such a re608*] that a tital destruction would *have 'tardation of the voyage as would, in all proba

bility, occasion a destruction of the article in specie before it could arrive at the port of destination, or from its damaged condition could not be reshipped in time consistently with the health of the crew or safety of the vessel, or would not be in a fit condition from pestilential effluvia, or otherwise, to be carried on, it then was the duty of the master to sell the goods for the benefit of whom it might concern.

The cargo being in a perishable condition, the extent of the repairs, or difficulty of procuring another vessel, and consequent delay at tending the same, are material considerations influencing his judgment in deciding upon the necessity of a sale; for it would be unreasonable to require him to subject his owner to this expense, when, at the same time, a strong probability existed that the cargo would not be in a condition to be reshipped. 18 Johns. 208; 6 Cow. 270; 1 Bing. N. C. 526; 3 Ib. 266; 3 Brod. & Bing. 97; Š. C. 6 Moore, 288; 6 Taunt. 383; 1 Holt, 48; 3 Kent's Com. 212, 213; 2 Phillips, 331 et seq.

The quantity and value of the portion saved are also material circumstances to be considered in exercising a sound discretion in respect to the extent of the repairs required to be made, or of expense in the procurement of another vessel, with a view to the earning of salvage for the benefit of the underwriter on freight. The owner of the cargo is liable for any increased freight arising from the hire of another vessel; and unless it can be procured at an expense not exceeding the amount of the freight to be earned by completing the voyage, the underwriter on freight has no right to insist upon this duty of the master. Beyond this, it becomes a question between him and the owner or underwriter of the cargo. 3 Kent's Com. 212; Shipton v. Thornton, 9 Adolph. & Ellis, 314; Searle v. Scovel, 4 Johns. Ch. 218; American Ins. Co. v. Center, 4 Wend. 45; 2 Phillips, 216.

In respect to the second question, therefore, we direct it to be certified to the Circuit Court, if the jury find that, from the condition of that portion of the cargo sold at Nassau, it was for the interest of the insured and insurers of the 610*] cargo that it *should have been so sold, and not transported to Matanzas, still, the plaintiffs are not entitled to recover as for a total loss of freight, provided their own vessel could have been repaired in a reasonable time, and at a reasonable expense, so as to perform the voyage, or they could have procured another at Nassau, the port of distress, and have transshipped the portion sold in specie to the port of destination.

The third question is, assuming that the plaintiffs are entitled to recover, is the policy on the amount mentionel for one entire voyage round from Baltimore out, and home again; and are the defendants entitled to deduct from the amount insured the freight earned in the voyage from Baltimore to Rio upon the outward cargo.

The policy provides, that the defendants, in consideration of $156.25, agree to insure the plaintiffs, etc., on freight of the bark Margaret Hugg, at and from Baltimore to Rio Janeiro and back to Havana or Matanzas, or a port in the United States, etc., to the amount of $5,000 upon all kinds of lawful goods, etc., be

ginning the adventure upon the said freight from and immediately following the lading thereof aforesaid at Baltimore, and continuing the same until the said goods, wares, and merchandise shall be safely landed at the port | aforesaid.

It is insisted, on the part of the defendants, that the voyage insured is one entire voyage from Baltimore out to Rio Janeiro, and then to Matanzas, or home; and that they are entitled to a deduction of the freight earned on the outward cargo from Baltimore to Rio.

The court are of opinion, that, upon a true construction of the policy, the insurance was upon every successive cargo that was taken on board in the course of the voyage out and home, and is to be applied to the freight at risk at any time, whether on the outward or homeward passage. This was the construction given to these terms in a freight policy in Davy v. Hallett, 3 Caines, 16, and The Columbia Ins. Co. v. Catlet, 12 Wheat. 383. The insurance was regarded as, in effect, covering freight upon separate voyages out and home, to the amount of the valuation; and in the former case the case the payment of double premium was deemed a pretty sure index to the intent of the parties that the policy should attach on the outward or homeward freight according to events, and was to be valid and operative as long as there was aliment to keep it alive. All the considerations urged in favor of this construction in the cases referred to apply with equal force to the policy in question.

The court direct, therefore, that it be certified to the Circuit Court, that, as- [*611 suming the plaintiffs are entitled to recover, the defendants are not entitled to deduct from the insured the freight earned on the voyage from Baltimore to Rio upon the outward cargo, as the policy is not for one entire voyage round from Baltimore out, and home.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court, 1st. That, if the jury find that the jerked beef was a perishable article within the meaning of the policy, the defendants are not liable as for a total loss of the freight, unless it appears that there was a destruction in specie of the entire cargo, so that it had lost its original character at Nassau, the port of distress; or that a total destruction would have been inevitable from the damage received, if it had been reshipped before it could have arrived at Matanzas, the port of destination. 2d. If the jury find, that, from the condition of that portion of the cargo sold at Nassau, it was for the interest of the insured and insurers of the cargo, that it should have been so sold, and not transported to Matanzas, still, that the plaintiffs are not entitled to recover as for a total loss of freight, provided their own vessel could have been repaired in a reasonable

time, and at a reasonable expense, so as to perform the voyage, or they could have procured another at Nassau, the port of distress, and have transshipped the portion sold in specie to the port of destination. And 3. That, assuming the plaintiffs are entitled to recover, the defendants are not entitled to deduct from the insured the freight earned on the voyage from Baltimore to Řio upon the outward cargo, as the policy is not for one entire voyage round from Baltimore out, and home. Whereupon, it is now here ordered and adjudged, that it be so certified to the said Circuit Court.

612*] *PHILIP PECK and William Bellows, Copartners, trading under the Firm of Philip Peck & Company, Plaintiff in Error,

V.

JOHN S. JENNESS, John Gage, and John E. Lyon, trading under the Name and Firm of Jenness, Gage & Company, Defendants in

Error.

able as the one or the other, as the party may elect.

The question for adjudication is whether the original plaintiffs can avail thmeselves of this process as a proceeding in rem. Howland, who is the several assignee of each of the original defendants, is in no proper sense a party to the record. He appears in the names of Peck and Bellows, and relies upon their rights. 5 Stat. at Large, 443, ch. 9, sec. 3.

*Statutes operate upon property, con- [*613 tracts, or persons. The statutes of the United States and those of a State may operate upon the same property, the same contracts, the same persons. Their action is distinct in time, or in purpose, or both. The operation of the two jurisdictions, each within prescribed limits, is independent.

Courts of equity cannot, in this country, in all things, exercise the same power, to the same extent, as do courts of equity in England. Courts of the United States and those of the States have a different origin; their jurisdictions are for different purposes. The one court will exercise its control over the citizen, so as Attachment on mesne process in New Hamp- not to impair his ability to yield obedience to shire creates a lien, not defeated by dis- the other, when and where such obedience is charge in bankruptcy-U. S. District Court, due. The jurisdiction of the courts of the sitting in bankruptcy, no control of suit United States and of the several States can pending in Common Pleas of New Hampshire. never rightfully come in collision; where the jurisdiction is concurrent, the one which first The proviso of the second section of the Bank-attaches will retain it. There are only two rupt Act passed on 19th of August, 1841, preserves all liens which may be valid by the laws of the States respectively.

In some of the States, attachments are issued on mesne process, by which the property seized is held to await the result of the suit. This constitutes a lien, which is saved by the proviso in the Bankrupt

Act.

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THIS

HIS case was brought up from the Superior Court of Judicature for the State of New Hampshire, by writ of error issued under the twenty-fifth section of the Judiciary Act.

Peck and Bellows were residents of the town of Walpole, in the County of Cheshire and State of New Hampshire. Jenness, Gage & Company resided in Boston.

The facts in the case are sufficiently set forth in the opinion of the court.

It was argued by Mr. Goodrich, on behalf of the defendants in error.

Mr. C. B. Goodrich, for defendants in error: In October, 1842, the plaintiffs below sued out a process of attachment, upon which estate of the defendants below, real and personal, was attached. This process issues without the sanction of any judicial officer. It issues at the will of anyone who assumes to be a creditor | of the party against whom it issues. It is a proceeding in personam and in rem-is avail

modes in which a suit rightfully instituted in a State court can be proceeded in, or controlled by, the courts of the United States; the one is by transfer, the other under the twenty-fifth section of the Judiciary Act. The courts of the United States are invested with the exclusive power of construction of the laws and treaties of the United States; courts of the several States construe the laws thereof; the construction of each, within its appropriate sphere, is obligatory upon the other.

When a statute of the United States adopts. or engrafts upon itself a statute or law of one of the States, quoad the law adopted, the construction of such law, at the time of its adoption by the highest judicial tribunal of the State whose law is adopted is also adopted. If this be not so, the same law, acting within the same territory and upon the same person, may mean one thing in one court room, something else in another. A State law adopted by the laws of the United States does not cease to be a State law. The jurisdiction of the District Court of the United States, sitting in bankruptcy, over property, is co-extensive with the effect produced by the decree of bankruptcy; which is to pass the property of the bankrupt, cum

onere.

The judgment of the court below should be affirmed, and I submit—

I. That the District Court of the United States for the District of New Hampshire acquired no jurisdiction of the several original petitions of Philip Peck and of William Bellows to be declared bankrupt, and its proceedings upon said several petitions are void. This is so, because the pleas do not aver or show that the petitions were verified by oath, *without which oath and verification the [*614 petitions were nullities; because the pleas do not aver that the petitioners represented to

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