is not for the peculiar benefit of that corpo- | whomsoever owned or navigated, is liable ration or division, but for its benefit in com- for an actionable injury resulting from the mon with the whole public. A fire depart- negligence of her master or crew to another ment is established in a municipality, not vessel. United States v. The Malek Adhel merely for the protection of buildings and (1844) 2 How. 210, 233, 234, 11 L. ed. 239, property within the municipality itself, but 249; The China (1868) 7 Wall. 53, 68, sub equally for the protection of buildings and nom. The China v. Walsh, 19 L. ed. 67, 75; property beyond its limits, to which a fire Ralli v. Troop (1895) 157 U. S. 386, 403, 39 originating within those limits may be in L. ed. 742, 750, 15 Sup. Ct. Rep. 657; The danger of spreading. Moreover, the neces-John G. Stevens (1898) 170 U. S. 113, 120, sity and appropriateness of the course and 42 L. ed. 969, 972, 18 Sup. Ct. Rep. 544. But measures to be taken to stay a conflagration that does not warrant the inference that a[587] must be promptly determined, in the first in- libel in personam can be maintained against stance, by those charged with the perform the owner for a tort which would neither ance of the duty at the time of the exigency; sustain a libel in rem against the ship, nor and often cannot be as accurately judged of an action at law against her owner. long after the fact. The members of the fire There is no case, we believe, in which a department of a city, therefore, whether ap- libel in admiralty has been maintained by pointed by the municipal corporation or oth-this court, as for a tort, upon a cause of acerwise, are not mere agents or servants of the [586] corporation, but are public officers charged with a public service; and for their acts or their negligence in the performance of this service no action lies against the corporation, unless expressly given by statute. It appears to us to be equally clear that no suit upon a like cause of action can be maintained in a court of admiralty; or, as expressed by the circuit court of appeals in this case: "That the suit is brought in a court of admiralty instead of a common-law court, and that the negligence consisted in the improper navigation of the vessel, are considerations which cannot affect the conclusion." 14 C. C. A. 531, 35 U. S. App. 204, 67 Fed. Rep. 348. tion on which, by the law prevailing throughout the country, no action at law could be maintained. On the contrary, it has repeatedly held that, as no action lies at common law for the death of a human being, no suit for a death caused by the negligence of those in charge of a vessel on navigable waters, either within a state or on the high seas, can be maintained in admiralty in the courts of the United States, in the absence of an act of Congress, or a statute of the state, giving a right of action therefor; and in delivering judgment in the leading case Chief Justice Waite said: "We know of no country that has adopted a different rule on this subject for the sea from that which it maintains on the land, and the maritime law, as accepted It was argued that all the admiralty and received by maritime nations generally, courts of the United States should be gov- leaves the matter untouched." "The rights erned by one rule of maritime law, without of persons in this particular under the mariregard to local decisions. Such is doubtless time law of this country are not different the case in the courts of admiralty, as it is from those under the common law, and as it in the other courts of the United States, up- is the duty of courts to declare the law, not on questions of general commercial law. to make it, we cannot change this rule." The Liverpool & G. W. Steam Co. v. Phenix Ins. Harrisburg (1886) 119 U. S. 199, 213, sub Co. (1889) 129 U. S. 397, 443, 32 L. ed. 788, nom. The Harrisburg v. Rickards, 30 L. ed. 793, 9 Sup. Ct. Rep. 480. Courts of admir-358, 362, 7 Sup. Ct. Rep. 140; The Alaska alty are also governed by their own rules, (1889) 130 U. S. 201, sub nom. Metcalfe v. and not by the common law or by local stat-The Alaska, 32 L. ed. 923, 9 Sup. Ct. Rep. ute, in matters affecting their own jurisdic-461; The Corsair (1892) 145 U. S. 335, sub tion and procedure, as, for instance, in regard to the rules of navigation in navigable waters (The New York v. Rea (1855) 18 How. 223.15 L. ed. 359), to the limitation of the liability of shipowners (Butler v. Boston & S. S. 8. Co. (1889) 130 U. S. 527, 32 L. ed. 1017,9 Sup. Ct. Rep.612) ; to the duration, the enforcement, and the marshaling of maritime liens (The Chusan (1842) 2 Story, 455, 462, Fed. Cas. No. 2717; The Lottawanna (1874) 21 Wall. 558, sub nom. Rodd v. Heartt, 22 L. ed. 654; The J. E. Rumbell (1893) 148 U. S. 1, 17, 37 L. ed. 345, 349, 13 Sup. Ct. Rep. 498) and to the effect of contributory negligence of a suitor upon his right to recover, and upon the assessment of damages. Atlee v. Northwestern Union Packet Co. (1874) 21 Wall. 389, 395, 22 L. ed. 619, 621; The Max Morris (1890) 137 U. S. 1, sub nom. The Max Morris v. Curry, 34 L. ed. 586, 11 Sup. Ct. Rep. 29. But the decision of this case does not turn upon any such question. By the general admiralty law of this country, often declared by this court, a ship, by : nom. Barton v. Brown, 36 L. ed. 727, 12 Sup. Ct. Rep. 949; The Albert Dumois (1900) 177 U. S. 240, 259, 44 L. ed. 751, 762, 20 Sup. Ct. Rep. 595. The cases of The Siren (1868) 7 Wall. 152, sub nom. The Siren v. United States, 19 L. ed. 129, and The Davis (1869) 10 Wall. 15, sub nom. United States v. Douglas 19 L. ed. 875, related wholly to claims against the United States, as compared with claims against private persons; no question of the liability of municipal corporations was contested by the parties, or alluded to by the court; and neither decision has any tendency to support the libel in the present case. In The Siren, a claim against a prize ship for damages from a collision with her while in the possession of the prize crew was sustained against the proceeds of the sale after condemnation, solely because the United States were the actors in the suit to have her condemned. So, in The Davis, salvage against goods belonging to the United States, and part of the cargo of a private ship, was In The F. C. Latrobe (1886) 28 Fed. Rep. 377, in the district of Maryland, and in Giovanni v. Philadelphia (1894) 59 Fed. Rep. 303, and 10 C. C. A. 552, 17 U. S. App. 642, 62 Fed. Rep. 617, and in Guthrie v. Philadelphia (1896) 73 Fed. Rep. 688, in the eastern district of Pennsylvania, in each of which a libel in admiralty was maintained against a city for a collision with the libellant's vessel of a steamboat maintained by the city for the purpose of clearing its harbor of ice, the steamboat, at the time of the collision, was not engaged in its usual public service, but in a special service for a private benefit; and stress was laid upon that fact in each of the opinions. allowed because the possession of her master | by Mr. Justice Bradley, sitting in the circuit (588) was not the possession of the United States, court, that they could not, because "the fireand the United States could only obtain the men were merely engaged in the line of their goods by claiming them in court. In short, duty," and "the attempt to make the perin each case, as Mr. Justice Miller after-formance of this duty a ground of salvage, wards pointed out, "the government came when it is a ship that takes fire, is against into court of its own volition to assert its wise policy." Davey v. The Mary Frost claim to the property, and could only do so (1876) 2 Woods, 306, Fed. Cas. No. 3,592; on condition of recognizing the superior The Suliote (1880) 4 Woods, 19. rights of others. Case v. Terrell (1870) 11 Wall. 199, 201, 20 L. ed. 134. The opinion in each of the three cases distinctly affirmed the well-settled doctrine of our law, that no suit can be maintained in a judicial tribunal against a state, or against its property, without its consent. See also Cunningham v. Macon & B. R. Co. (1883) 109 U. S. 446, 451, 27 L. ed. 992, 994, 3 Sup. Ct. Rep. 292, 609; Stanley v. Schwalby (1892) 147 U. S. 508, 512, 37 L. ed. 259, 261, 13 Sup. Ct. Rep. 418, and (1896) 162 U. S. 255, 270, 40 L. ed. 960, 965; Belknap v. Schild (1896) 161 U. S. 10, 16, 40 L. ed. 599, 601, 16 Sup. Ct. Rep. 443; Briggs v. Light-Boats (1865) 11 Allen, 156, 179-185. In England, it is equally well settled that no libel in admiralty can be maintained against the Crown, or against a foreign sovereign, or against any property of either, without his consent. See The Lord Hobart (1815) 2 Dodson Adm. 100; The Athol (1842) 1 W. Rob. Adm. 374; The Par-63 Conn. 587, 60 Fed. Rep. 560, were only lement Belge (1880) L. R. 5 Prob. Div. 197, in which the court of appeals, speaking by Lord Justice Brett (since Lord Esher, M. R.), reversed the exceptional decision of Sir Robert Phillimore in (1879) L. R. 4 Prob. Div. 147. The decisions that no suit can be maintained against the sovereign without his consent have certainly no tendency to support a suit against a municipal corporation for negligence in exercising powers delegated to it as a political division of the state, or to its officers, for the benefit of the whole public, and not for the benefit of the corporation only. The decisions of the circuit court of the United States in Massachusetts in Boston v. Crowley (1889) 38 Fed. Rep. 202, and of the district court of the United States in Connecticut, in Greenwood v. Westport (1894) that libels in admiralty in personam could The cases of The Blackwall (1869) 10 Wall. 1, sub nom. The Blackwall v. Sancelito Water & Steam Tug Co. 19 L. ed. 870; The Clarita (1875) 23 Wall. 1, sub nom. The Clara Clarita v. Cox, 23 L. ed. 146, 23 Wall. 15, sub nom. New York Harbor Protection Co. v. The Clara, 23 L. ed. 150, and The Connemara (1883) 108 U. S. 352, sub nom. Sinclair v. Cooper, 27 L. ed. 751, 2 Sup. Ct. Rep. 754,-related to the rights and liabilities of The only instance cited at the bar, in private persons engaged in saving, or at which a libel in admiralty has been maintempting to save, vessels from imminent dan- tained in such a case as the present, is that ger of destruction by fire; and decided noth- of Thompson Nav. Co. v. Chicago (1897) 79 ing as to the rights or liabilities of munici- Fed. Rep. 984, decided by the district court pal corporations or of their firemen. In The for the northern district of Illinois since Clarita, it was a private corporation owning this suit was commenced, and avowedly a dea ferry boat that was held liable for negli-parture from the case of The Fidelity (1878) gence while engaged in an attempt to save 9 Benedict, 333, Fed. Cas. No. 4,757, and a vessel from destruction by fire; and The (1879) 16 Blatchf. 569, Fed. Cas. No. 4,758, Blackwall, The Clara, and The Connemara in the southern district of New York, in concerned the allowance of salvage to private which it was held by Mr. Justice Blatchford, [589]salvors for services in putting out a "fire on then district judge, and by Chief Justice a vessel. In The Blackwall, the court avoid- Waite in the circuit court on appeal, that a ed, as unnecessary to the decision, the ex-libel in rem could not be maintained in adpression of any opinion upon the question miralty against a steam tug owned by the whether members of a fire department could city of New York, and under the exclusive recover salvage for such services. 10 Wall. control of the commissioners of public chari12, 19 L. ed. 874. It was afterwards decided' ties and correction, and employed in the per formance of their official duties, for her collision with the libellant's vessel through the negligence of those in charge of the tug. due it from the depositor, by reason of the [No. 83.] ber 24, 1900. Decided Decem The duty of the state to protect the property of all from destruction by fire covers vessels in its harbors, as well as buildings within its territory. The authority of the fire department and its members as to both kinds of property is derived from the municipal law, and not from the maritime law. Argued November 7, 1900. Ralli v. Troop, 157 U. S. 386, 419, 420, 39 L. ed. 742, 756, 15 Sup. Ct. Rep. 657. All the shipping, foreign and domestic, in the port, is under the same safeguard, and subject to the same risks. Prompt, decisive, and unembarrassed action of the firemen is necessary to the protection of both buildings and vessels from the dangers of a conflagration. The necessity of allowing a municipal fire-boat to proceed on her way to put out a fire affords a special reason for not allowing her, while so occupied, to be seized on a libel in rem. But all the reasons for not maintaining an action of this kind against the city in a court of common law apply with undiminished force to a libel against the city in personam in a court of admiralty. N ERROR to the United States Circuit Court of Appeals for the Sixth Circuit to review a decision affirming a judgment in favor of the plaintiff in an action on a note. Affirmed. In any aspect of the case, therefore, we are of opinion that this suit cannot be maintained against the city of New York; not by the local law of New York, because that law, as declared by the court of appeals of the state, is against the maintenance of such a suit; not by the maritime law, because ac[591]cording to the municipal law prevailing throughcut this country, as declared by the highest court of every state in which the question has arisen, cities are not liable to such suits, and no authoritative precedent or satisfactory reason has been produced for applying a different rule in a court of admiralty. See same case below, sub nom. Joyce v. Statement by Mr. Justice Brewer: Three years after date, we, or either of us, promise to pay to the order of C. H. Whittemore, as receiver of the McCarthy & Joyce Company, the sum of nine thousand ($9,000.00) dollars, with interest at six per cent per annum from date till paid. This is one of the three notes executed for purchase money of the assets of the McCarthy-Joyce Company, this day sold to James E. Joyce & Company. James E. Joyce & Co. John Joyce. Little Rock, Arkansas, March 20, 1893. This note was transferred before due for was value to the First National Bank of Little "Defendant further says that at the time Stroud v. Pace, 35 Ark. 100; Sheppard v. Thomas, 26 Ark. 628. The surety is entitled to the benefit of all the securities in the hands of the creditor, and if any be lost by his wilful neglect or want of due diligence the surety is, to that extent, discharged. Brandt, Suretyship & Guaranty, § 440; Burr v. Boyer, 2 Neb. 265; Law v. East India Co. 4 Ves. Jr. 824; City Bank v. Young, 43 N. H. 457; Wulff v. Jay, L. R. 7 Q. B. 756; Gillespie v. Darwin, 6 Heisk. 21; Watts v. Shuttleworth, 5 Hurlst. & N. 235. serve a lien, under the statutes of the state | erty sold, was to reserve a lien which would of Arkansas, upon all the real and personal be good for all persons and against all perproperty so ordered to be sold, and this de- sons claiming an interest in the property. fendant, knowing that said property was In other words, it is a mortgage incorporated more than sufficient in value to pay all the in the deed of conveyance. deferred payments as provided for in said sale, and relying upon the faithful execution of said order by said receiver, became surety upon said note described in the petition herein. Defendant further says that said receiver, after having received said note, in violation of the order of the court, and in violation of the rights of this defendant, negligently and wrongfully failed to retain or reserve a lien upon said property, real and personal, and improperly conveyed all of said real and personal property to the said James E. Joyce & Company, free and clear of any lien whatsoever. The defendant further says that said James E. Joyce & Company, after so receiving said property, have sold and conveyed all the personal property and nearly all the real estate to third persons, who were ignorant of said order of court, made for said sale; whereby the lien which ought to have been retained and reserved has been lost; [593] and the said defendant further says that said property was sufficient in value to have fully paid said note, as well as the other note given for the deferred payments, and the said First National Bank of Little Rock, Arkansas, as well as its receiver, having received the said note with notice of the foregoing facts, this defendant is discharged and released from the said note, he asks that the plaintiff be compelled to surrender said note and that the same be canceled by order of this court." the understanding that certain conditions If the surety signs the obligation upon shall be performed, and the creditor knows these conditions, the surety will not be bound if the conditions are not complied with. Vt. 476; Jones v. Keer, 30 Ga. 93; Linn County v. Farris, 52 Mo. 75, 14 Am. Rep. 389; Cooper v. Joel, 1 De G. F. & J. 240. Hickok v. Farmers' & Mechanics' Bank, 35 An act of omission on the part of the creditor when the law requires him to act may be quite as potent for mischief to the surety as an act of commission. 525. Mr. Talfourd P. Linn argued the cause, and, with Mr. Joseph Outhwaite and Messrs. Outhwaite, Linn, & Thurman, filed a brief for defendant in error: Toomer v. Dickerson, 37 Ga. 428; Teaff v. Ross, 1 Ohio St. 469; Capel v. Butler, 2 Sim. & Stu. 457; City Bank v. Young, 43 N. H. 457; Schock v. Miller, 10 Pa. 401; Holt v. Bodey, 18 Pa. 207; Cummings v. Little, 45 The second defense was that, when the Mc- Me. 187; Baker v. Briggs, 8 Pick. 122, 19 Carthy & Joyce Company made its assign-Am. Dec. 311; Moore v. Gray, 26 Ohio St. ment, a part of the property assigned consisted of certain promissory notes, the dates, amounts, and payers of which were specifically described; that such notes at the time of the assignment were in the possession of the First National Bank of Little Rock for collection; that such bank was a preferred creditor to a large amount; that all the property of said McCarthy & Joyce Company, in cluding such notes, was ordered sold, and that the sale was made for $38,200, as heretofore stated; that thereafter the First National Bank and its receivers declined to surrender the notes, or the proceeds of such as had been collected; that the purchaser, James Joyce & Company, paid to the receiver of the McCarthy & Joyce Company $20,200, and that the notes retained by the bank and its receiver were of sufficient value to pay the unpaid purchase price, both this note and the other note heretofore described. A demurrer to such answer was sustained, and judgment entered in favor of the plaintiff, which judgment was affirmed by the court of appeals of the sixth circuit (35 C. C. A. 38, 92 Fed. Rep. 838), and thereafter this writ of error was sued out. Mr. Thomas E. Powell argued the cause, and, with Mr. Thomas B. Minahan, filed a brief for plaintiff in error: The order of the court to the receiver in this case, to reserve a lien upon the prop By attaching his signature to the note and delivering it to the principal maker, without any conditions stipulated therein other than the absolute contract of suretyship as evidenced by his signature, plaintiff in error in effect gave credit to the note as and for an absolute promise of payment, unconditional and without any notice, either to the payee or to the subsequent indorsees, of any stipulation or agreement not contained in the paper itself. Davis v. Gray, 61 Tex. 506; Passumpsic Bank v. Goss, 31 Vt. 315; Bank of Missouri v. Phillips, 17 Mo. 29; Stoddard v. Kimball, 4 Cush. 604; Merriam v. Rockwood, 47 N. H. 81; Deardorf v. Foresman, 24 Ind. 481; Selser v. Brock, 3 Ohio St. 308; Wornell v. Williams, 19 Tex. 180. The doctrine is well settled that mere laches on the part of a creditor will not deprive him of his action against the surety. Humphrey v. Hitt, 6 Gratt. 523, 52 Am. Dec. 133; Farmers' Bank v. Raynolds, 13 Ohio, 85; Dye v. Dye, 21 Ohio St. 93, 8 Am. Rep. 40; Schroeppell v. Shaw, 3 N. Y. 446; Brick v. Freehold Nat. Bkg. Co. 37 N. J. L. 307; Pittsburg, Ft. W. & C. R. Co. v. Shaef It is not denied that the note sued upon 2 Randolph, Com. Paper, § 557; Baker v. fer, 59 Pa. 350; Monroe County Supers. v. | the receiver that he signed upon that condi- 369. [593] *Mr. Justice Brewer delivered the opinion of the court: The surety, defendant below, now plaintiff [594]in error, did not in his answer aver that the note was not given for value, or that either he or his principal had paid it. His defenses were that he was discharged from liability, first, by the conduct of the payee; and, second, by that of the plaintiff. With regard to the first defense, we may put the plaintiff out of consideration, and inquire whether the defense would have been good if the payee had not transferred the note, but had himself brought the action. For the plaintiff, though charged to have had knowledge of the facts, is, if in no better, certainly in no worse, position than the payee would have been. That defense was, in substance, that the receiver was directed in making a sale to retain a lien, as well as to take personal security. The surety knew that such order had been made, expected that it would be complied with, and signed as surety, relying upon compliance; but there is no allegation that he ever notified either his principal or conditional promise. The receiver was not There are many authorities sustaining.the |