text:
    Martin Durand vs. N. Thouron & Co.

      Error from Mobile' Ciruib Court, — Before the Hon. S. L. , Perry.
    A. having the possession of goods, deposited with him for sale by B. effects an insurance on the contents of his store. A loss ensues — and A in a schedule of destroyed articles, includes the goods of B. and receives the whole amount of insurance. Afterwards,, A. gives to B. a written memorandum, stating that he will account to B. for his pro portion of insurance when ascertained; held,

      1. That A. could not show by parol testimony that he intended by the memorandum, a mere intention" to account, out of what might remain after his own loss had been satisfied.
    2. That A. could not retain the whole amount so received on the insurance, by alleging, that the destruction of his own goods was equal to the sum so received ; but that B. could recover on his loss in proportion as the value of the policy was to the whole loss.
    3. That it was not necessary to the recovery ofB. that he should have in structcd A. to insure his goods, when deposited, or before their destruction.
    4. That one having the possession of the goods of another, may insure for the benefit of the latter, without authority in the first instance ; and that the cestui que trust, may adopt the policy.
    This action was commenced by Thouron & Co. in the court below, to recover the value of a box of laces, which had been deposited with Durand for sale. Durand had effected an insurance of the goods in his store, and the same had been destroyed by fire.
    On the trial of this cause, the plaintiff below read a paper in support of his action, which was in the following words:
    • “ Mobile, 11th February, 1829.
    “I will account to Messrs. N. Thouron & Co. or to any agent they may appoint, for the sum that may be coming to them, (their proportion of insurance on a box of laces, burnt in my store on the morning of 21st October, 1827) when the amount coming to each loser will have been ascertained.
    ■ ' ' _ “M. DURAND.”-
    It was proved that a box of laces, the property of the plaintiffs below, had been intrusted tó Durand for sale, and that they were included in the list of goods insured. After the loss of the goods by fire, and before the execution of the above writing, Durand received the whole amount of the policy, amounting to tw'o thousand dollars.
    The defendant below,An defence of the action, offered to prove, that Thouron St Co. had never given any instructions - for insurance ; that in the settlements of-various sales made previous to the fire, with the agent of the plaintiffs below, (to whom the above paper had been given,) no insurance »vas. charged, and that in executing the writing, it was not intended by either party as an acknowledgment of any thing being due, but as a memorandum by which the agent could settle his accounts with the house of Thouron & Co. — they residing in Philadelphia. The defendant below also offered evidence to show, that in making out his claim for insurance, he intended to secure himself for his own losses first; that they amounted to more than two thousaad dollars, and that, the goods of the plaintiffs below had been included in a list made out subsequent to the fire, by advice of counsel, merely to show the extent of the loss, but not that the plaintiffs, Thouron & Co. should share pro rata with his own.
    The court rejected the whole of this testimony, and instructed the jury, that the defendant, Durand, by the aforesaid writing, admitted that he had insured for and on account'of ,
    Thouron Co.; that the evidence proposed by him, would controvert the import of the instrument, and was therefore improper ; and that the recovery of the plaintiffs would be proportionate as the value of the policy was to the whole loss sustained. Durand, by his counsel, requested the court to charge the jury—

      1st. That if no instructions to insure, were given by Thou* rQn ^ ^0, when the goods were deposited with Durand, or beforé the fire, that then the goods were not covered.
    , 2d. That if Durand had goods of his own destroyed, exceeding the amounl received by him, on account of the insurance, he was first entitled to be paid.
    3d. That the writing relied on in support of, the action, did not admit any proportion whatever.
    4th. That if it admitted any proportion, it was only for so much as might remain after Durand had been first paid.
    The court refused these instructions, and the plaintiffs, Thouron & Co. had judgment.
    Durand now assigned the same as error here.
    Hale, for Plaintiff.

      Hughes on Insur. 386 — 16 East. 141 — 5 Taunt. 101 — 2 Mass. 365 — 2 Granch, 419.
    Goldthwaite, contra.

    4 Bos. &f Ful. 283, 291, 307 — 13 East, 274 — 2 Maulé & ScJ/w. 485 — 2 Peters, 46.
   By Mr. Justice Saffold :

The action was assumpsit, for money had and received — ■ brought in the Circuit Court of Mobile county, by the present defendant, against the plaintiff in error. Thouron & Co. in support of the action in the Circuit Court, read in evidence, a paper as follows: “ Mobile, 11th February, 1829. — I wilj account to Messrs. N. Thouron & Co. or to any agent they may appoint, for the sum that may be coming to them, (their proportion of insurance on a box of laces burnt in my store on the morning of the 21st of October, 1827,) when the , amount coming to each loser will have been ascertained.— Sighed, M. Durand.” They also read in evidence a state- ■ ment drawn up by Durand for the Insurance Company, showing the amount of loss in his store, (which he used as an auction establishment) from the fire, by a schedule containing the articles consumed, and their value ; and on which he relied as proof that the laces were insured. The schedule was accompanied with the affidavits usual in like cases. The whole value of the goods destroyed, as shown by the schedule, was $3196 71; among the other articles contained, was a box of laces, valued at $253 43, which was .proved to have been the property of Thouron & Co., and was admitted to be the same referred to in the above recited paper, containing the promise to account for it in the proportion mentioned. And they further proved, that the Insurance Company had paid to Durand, on the policies of insurance, $2000. The defendant offered to prove that the plaintiff had never given any instruction for insurance — that in the settlement of various sales, made before the fire, with the agent of the plaintiff, A. George, no insurance was charged, and that in giving the paper relied on as containing the agreement to account, it was not intended by either him or the plaintiff, as an acknowledgment of any thing being due, but as a memorandum, by which said A. George could settle his accounts with the plaintiffs, they living in Philadelphia, and he being their agent here. The defendant further offered to prove, that in making out his claim for insurance, he intended to secure himself for his own losses first; that they amounted to more than two thousand dollars, and that the plaintiffs’ goods were included in the list, by advice of his counsel; not with the intention of having them come in pro rata with his own, but to show the extent, as far as he could, of these losses. All which testimony, the court rejected; and instructed the jury, that by giving the written promise as described, the defendant admitted that he had insured for and on account of the plaintiffs; also instructed them, that the amount of the plaintiffs’ recovery should be in the proportion of the two thousand dollars to the whole amount proved in the schedule.

The counsel for the .defendant below, also requested th© court to instruct the jury*—

1st. That if no instructions to insure, were given by Thou- & Co. when the goods were deposited or before the fire, that then the goods were not covered.

2d. That if Durand had more than two thousend dollars burnt, he was first entitled to be paid.

3d. That the paper relied on did not admit any proportion whatever.

4th. That if it admitted any proportion, it was only for so much as might remain after Durand had been first paid.

All these instructions the court refused to give.

The rejection of the parol evidence, and the refusal of the court to instruct the jury as above requested, and instructing-differently, is the cause assigned for error.

As respects the rejection of the evidence, it may be observed, that the object of offering it, must have been for the purpose of varying, explaining, or contradicting the written evidence, which had been introduced by the plaintiff. That pa-rol proofis inadmissible toalteror contradict written contracts or agreements, is one of the most valuable and best established general rules of evidence. It is true, there are some exceptions to it, as in the case of receipts and other particular circumstances of accident, mistake or fraud; but no such circumstances appear in this case, to justify an exception to, or departure from, the general rule.

The schedule of goods claimed to have been insured, made out for the purpose of demanding the insurance, and containing, among various other articles, the laces in question, was admitted and sworn to by Durand himself; as being just and correct, in November, 1827. Afterwards, in February, 1829, he signs a written agreement to account to Thouron & Co. the plaintiffs, for their proportion of the insurance, in the terms of the instrument first given in evidence. Then on trial he would resist the force of his written promise by parol evidence — that in giving the former, “ it was not. intended by either him or the plaintiffs, as an acknowledgment that any thing was due, but that it was intended as a memorandum for other purposes.”

The other parol evidence offered, respecting the written . promise, was all of a similar nature, connected with the proposition quoted, and dependent on the same principle. The proof offered respecting the motive in preparing the schedule, had the sanction of but little plausibility, and less materiality; his true motives may have been concealed within his own breast, and may have been different from those indicated by his conduct; but he must be bound by his acts and declarations, which are less equivocal than his secret intentions;— There could have been no propriety in including in the schedule of his demand on the insurers, articles which had not been insured ; and after having thus solemnly declared them to have been insured, even on a valued policy, and received the insurance, he was estopped to deny it. The fact, that in this, he acted on the advice of counsel, cannot vary the case. To the admissibility of the proof, that the plaintiff had given no instructions for the insurance, and that in the settlement with his agent for other sales previous to the fire, no insurance was charged, there would appear to have been no legal objections, had the same been material, and separately relied on : but such does not appear to have been the case. The court below, seems to have placed the right to recover on the ground alone, that the defendant’s written promise to account, contained an admission, that he had insured for and on account of the plaintiffs. I am therefore of opinion, there was no error in the rejection bf the evidence. The propriety of refusing the instructions to the jury, as requested, and of giving the contrary as stated, depends upon the force and effect of the written evidence, and the law applicable thereto. It is the province of the court to determine the legal effect of written agreements. Then what is the true construction of the défendant’s undertaking of the 11th February, 1829 ? Does it admit any insurance for the benefit of the plaintiffs, and promise to pay any thing on account thereof? The promise is conceived to amount in substance to this — that he wou!d>acconnt to the plaintiffs for such sum as should be found to be the just proportion of the insurance on the laces consumed, when the amount due to each loser should be ascertained. When analysed and disincmi.bered of time, place, and parenthesis, this is the simple form of the promise, and I think, implies an admission,,that lie the defendant, had insured the laces ; and expresses an'agreement, that he would be answerable to the plnintiffs for such portion of the value of the laces, as shou'd he equal to the proportion accruing to each loser, out o? the amount of insurance received, or to bo received, on account of all. The sum received having been proved to be two thonsand dollars, and the whole amount of losses, (including the plaintiffs’) three thousand one hundred and ninety six dollars seventy-one cents. The requisite data was furnished for computing the sums due to each loser.

From this view of the case, it results, that there was no error, either in giving or refusing instructions, as stated, unless the objection .can be sustained, that in as much as there was no authority given for the insurance, and the other goods Tost were of greater value than the amount of the policy, the defendant’s promise to pay on account thereof was nudum, pactum, and created no legal obligation.

On this point the counsel have referred to various authorities on each side. For the plaintiffs in error, has been cited the case of Grant, et al. vs. Hill. There the defendant had effected an insurance for his own benefit, on goods which he he had obtained by means of a bill of lading, indorsed to him after the bankrupty of the proprieto:, and afterwards brought suit against the writers, alleging that the assignees of the bankrupt were entitled to the interestand recover ed accordingly. Under these circumstances, the assignees brought the action of assumpsit, against Hill, for money had and received. Mansfield, Chief Justice, in delivering the opinion of the court, maintained, that Hill could not be converted into an agent or trustee for the assignees, or in any way be considered as having recovered for their benefit, so as to warrant a recovery against him at the suit of the assignees. That if a man make an insurance in the name of another, upon a subject in which he has no pretence or claim or interest, he could not see how that could be made the ground of a recovery against him, by the person in whose name the insurance was made, the recovery having been had without consideration.

In the case of Parks, et al. vs. The General Insurance Company, the question was presented, what was an insurable interest in goods — a sufficient description of that interest — and what the extent of the right of recovery ? An insurance had been effected by the plaintiff upon goods in his store, said to have been by him held in trust — “ he represented that he was in the habit of receiving goods for sale, and making adyances upon them, and that he wished to obtain insurance upon them to secure himself against loss by fire, as the consignors might net be able to repay the advances. It vyas held, that construing the policy and representation together,, the insurance in that case, attached to goods received by the plaintiff as consignee, but it covered only the interest in them, and not that of the consignors.

In Graves vs. Boston Marine Insurance Company, the principle was recognised, that a policy in the name of one joint owner. as properly may appear,” without any clause stating the insurance to be for the benefit of all concerned, does not cover the interest of another joint owner.

These cases sustained the principles for which the counsel for the plaintiffs mainly contends, that if one effect an insurance, and in the event of a loss, receive the money on goods, in which he had no interest, his wrongful recovery or receipt of the money, does not give the true owners a right of action against him, and that one having a qualified interest in goods, as consignee, for instance on account of hisipommis-sions, or money advanced, and insuring his own interest only, may recover accordingly without securing the interest of the consignors, or anjr others jointly concerned who are not embraced, either generally or specially, by the terms of the policy. The establishment of these principles, in the absence of any special undertaking on the part of Durand, or of evidence that the interest of the plaintiffs, as well as his own interest, was insured, would have been sufficient to exonerate him from any liability under the other facts of the case. But here, notwithstanding there appears to have been other goods in the store of greater amount than the value of the policies, he has admitted by his schedule, and in the most solemn manner, that Thouron & Co’s, goods were equally insured, and it was on these, no less than any others, according to value, that the insurance was effected ; and stopping not here, he proceeds further to the act which I think most essentially distinguishes this case, in principle and in fact, from any relied on in his defence. Fifteen months after the loss had occurred, and nearly as long after preparing his schedule, when it must be presumed he had made himself familiar with all the circumstances, he executes to the agent of Thouron & Co. an instrument, repeating his admission that their goods had been included in the insurance; and expressly promising to account to them, in the same proportion that other losers were to be remunerated from the insurance. It cannot be known that the Insurance Company would have voluntarily paid, or that the two thousand dollars could have been recovered against them, had not the goods of Thouron & Co. been included in the schedule ; and we know not how many other articles belonging to other persons, and held by Durand in the same manner, might have been also included in the schedule. Though this was a valued policy, the insurers might, .for aught that appears, have successfully contested the validity of the policy, had these not been included, on the’ground of fraud or misrepresentation, in respect to the value or interest. At any rate Durand seems to have thought it more safe to include them as part of the insured articles; and having done so and received the insurance, there was a moral obligation sufficient to sustain his promise.

As contended on the part of the defendants in error, the law seems to be settled, that “ an insurance effected for the benefit of a third person, although without his authority or sanction, may be adopted by the person for whose benefit it was made.” If where it does not appear from the policy the interest of such third person was insured, the effectof adoption be contested and denied, as in the case of Grant, et al. vs. Mill, the difficulty must vanish, when it appears, as in this case, that the adoption was by the mutual consent of the person insuring and the third person, and the agreement written and signed by the former. — (See also, Hagerdon vs. Oliverson —Shuna vs. Crawford. ) Hence, we are unanimous in the opinion, that there was no error either in rejecting the evidence offered, in giving the instructions to the jury as was done, or in refusing the contrary instructions requested ; and that the judgment must be affirmed.

      4 Taunt.380

      5 Picker. 84.

      2 Cranch 419

       Hughes on Ins. 41.

       2 Maul. & Sel. 485.

      2 New R.283 291, 307---1 Pet. 162.


source: Caselaw Access Project

author: By Mr. Chief Justice Lipscomb :

license: Public Domain

text:
    William J. Watson vs. Samuel Dale.

      Error from Dallas Circuit Court — Before the Hon. Reuben Saffold.
    Where a party relies on an indorsed payment on a note, so as to estop .the operation of the statute of limitations ; such payment must be proved to have been made at the time it bears date.
    The replication to the plea of the statute of limitations, of a subsequent credit or payment, should set out the payment credited, so as to render it available as evidence of a subsequent promise.
    This was an action of assumpsit; to recover the amount of ® promissory note. Among other pleas, the defendant pleaded the statute of limitations. To this plea, the plaintiff filed his replication, alleging that the defendant was for a long time, to wit, one year of tha six years next before the commencement of the suit, absent from the state. A verdict was rendered for defendant, and the plaintiff took a bill of exceptions — which shows, that on the trial of this cause, the plaintiff offered in evidence a note, drawn by defendant and others, fortwentyoae hundred and sixty dollars, payable to N. Shack-leford, or bearer, on the first day of January, 1819, and dated the twenty third of August, 1817.
    On the note was indorsed the following credit — “ Received, 15th May, 1819, three hundred and fifty two dollars.”
    The plaintiff offered evidence in support of his replication, that the defendant, went to the state of Georgia, on the first of April, 1824 or 1825, and returned a short time before the general election. % ,
    The counsel for the plaintiff,' prayed the court to charge the jury, that thestatute commenced running from and after the 15th May, 1819 — the date of the credit on the note. The court refused to give this charge, but instructed the jury, that under the issue, the statute commenced running from the maturity of the note, and that to render the payment available, as evidence of a subsequent promise, it should have been set out in the replication. There was no evidence offered respecting the credit; but on .the refusal of the court to give the charge prayed, and on the instructions given, the plaintiff assigned errors in this court.
    Goldthwaite, for Plaintiff.
    Wilson, contra.

    — Saunders on Eoid. 452.
   By Mr. Chief Justice Lipscomb :

This action was brought on a note of hand, made by the defendant, Dale, to N. Shackleford, or bearer, due the 1st of January, 1819. A credit is indorsed on the note, dated 15th May, 1819. The plaintiff, as bearer of the note, commenced suit on the 3d day of June, 1825. The defendant among other pleas, pleaded the statute of limitation. To which plea" the plaintiff replied, that the defendant had, after the maturity of the note, been absent from, and out of the state, a long time, to wit, one year. On this special replication, issue was joined, and there was a verdict for the defendant.— Pending the trial, a bill of exceptions was tendered by the plaintiff’s counsel, and signed and sealed by the presiding Judge. So much of it as we consider material to the case, is in the words following, viz :

“ The plaintiff’s counsel offered in evidence, in support of his replication to the plea of the statute of limitation, that the defendant went to Georgia on the first of April, 1824 or 1825, and returned a short time before the general election. The counsel for the plaintiff prayed the court to. charge the jury, that the statute commenced runnmg from and after the 5th day of May, 1819, the date of the credit endorsed on the note; which charge, the court refused to give; but charged the jury, that under this issue, the statute commenced running from the maturity of the note, and that to render the payment available as evidence of a subsequent promise, it should have been so set out in the replication; to which charge, and the refusal of the court to give the charge prayed, the plaintiff, by his counsel, excepts.
P. S. — There was no evidence offered respecting the credit. The defendant’s counsel, however, commented on it iti argument.”

It is not very material in this case, to decide whether a subsequent promise should be specially pleaded, or given in evidence. It seems, that on principle, it must depend on another, on which there has been considerable contrariety of opinion— , that in, whether the action in such casos is founded on the original consideration, revived by the subsequent promise, or founded on the subsequent promise, referring only to the original undertakings, as constituting a valid consideration inlaw,

If the former be the correct principle, it would seem to me that the subsequent promise could be given in evidence under the general replication to the statute ; but if the letter be correct, then it would seem'that it ought to be specially plead" ed. ■ It is believed to be well settled, that a payment made, will stop the, running of ft. c statute. ■ •

If the replication to the pica ef the statute, bad been .gene* ral, or a subsequent promise had been specially set up by the replication, in either case, on proof of a payment having been made, the statute would have commenced running from the date of such payment.

The replication is, however, special, and sets up no subsequent promise, either expressly or constructively. It alleges the absence of the defendant from the state ; on this issue was taken, and an absence for seme time from the cíate was proved, but not long enough to prevent the bar, if the statute commenced running from the maturity: sufficiently long, however, if the date of the credit indorsed on the note could be assumed as the time-when it should commence.

If the payment had been proved to have been made at the time t'he credit indorsed bore date, that would certainly, under the issue, have been the time at which the statute commenced to run. In the case of Shelton vs. Shelton, decided in this court, it was ruled, that where an'indorsed credit on a note, is relied on for the purpose of taking the case out of the operation of the statute of limitation, such payment must be proved to have been made at the time it bore date.

The bill of exceptions shows us, that there was no proof "of the payment, and in the absence of such proof, the date of the maturity of the note was very properly referred to, as the time ; without such proof, the charge was wholly irrelevant, and could not change the result, whether right or wrong.— The statute interposed a bar without proof of the payment.

We are bound to believe, that the court below looked upon this absence of proof of payment, as a material and important ■feature, constituting a fata! defect in the plalntifTs right of recovery. The judgment must be affirmed.


author: Ey Mr. Justice Sapfold :

text:
    Watkins, use of Batre vs. Durand.
    . Error from Mobile Circuit Court — Before the Hon. Show L. Perry.
    Where A. effects an insurance on goods, and in the policy describes them a3“ owned by himself, held in trust, or on commission,” and on tholr destruction receives the amount for which they were insured, hs will be held to be the agent or trustee of B. whose goods were part of those described in the policy, and which had been deposited with A. for sale; and B. can recover his proportionate ratio of the amount so received. v
    In such case, it is not necessary that an original authority should have been given to insure, or that it should be adopted prior to a loss.-— The adoption of the policy within a reasonable time after the loss, will bind the insurer.
    This was an action of assumpsit, to recover the value of certain guns, which had been placed in the store of the defendant in error, to be sold at auction. The plaintiff below, proved that an insurance had been effected by Durand, on all the goods deposited with him, including the guns now in question ; and that he had desci ibed the same in the policy, as “ goods belonging to himself, or held in trust, or on commission.” That on the destruction of the goods, by fire, Durand had received the full amount of the insurance, being two thousand dollars, and less than the value of all the goods which were burned. To recover the value of the guns, out of the amount so received, this suit was commenced.
    On the trial of the cause, the plaintiff moved-the court to charge the jury, that if they believed the guns mentioned in the list of insured articles, were in fact, the property of th© plaintiff, the defendant was estopped thereby, and could not allege that the plaintiff had not instructed him to ©¡tuse inm-
      ranee on his goods. The court refused to give this charge,, and instructed the jury that the plaintiff could not recover un~ ” loss they found from the testimony that the defendant had authority from the plaintiff to effect an insurance on his goods; or that after the insurance, the plaintiff had adopted the policy, which adoption must have been previous to the loss. The plaintiff excepted to the opinions of the court as above expressed, and now assigns the same as error.
    Hale, for Plaintiff.
    Goldthwaite, contra..

   Ey Mr. Justice Sapfold :

This action was assumpsit, for money had and received, &.c.; brought by Watkins, for the use of C. & A. Batre, against the present defendant, in the Circuit Court of Mobile. A trial was had on the general issue, in which the defendant prevailed. A bill of exceptions taken on the trial, discloses the following facts, as the foundation of the action.

Fifty eight guns, the property of the plaintiff, had been, placed by him in the defendant’s store, to be sold at auction. The defendant had caused the same, with other goods, amounting to more than three thousand dollars, to be insured by valued policies at two thousand dollars ; and after a loss of the goods by fire, had received the latter sum. The insurance embraced all the goods in the defendant’s store, and were described in the application and policy, as goods belonging to himself, or held in trust or on commission. The plaintiff moved the court to charge the jury, that if they believed that the guns mentioned in the schedule of insured articles, were in fact, the property of - the plaintiff, the defendant was es-topped thereby, and could not say the plaintiff had not instructed him to cause insurance on his goods. This charge the court refused; but instructed the jury, that the plaintiff could .■ (h^- found from the testimony, that the •defendant bad authority from the plaintiff to insure his goods; or fhat after the insurance was effected, and previous to the loss, the plaintiff had adopted the insurance. These instructions arc assigned as erroneous. The opinion of this court, lately pronounced in the case of Durand vs. Thouron & Co. decides some of the principles involved in this, and may be referred to, for part of the views by which we are now governed. We there held, that a part owner, or one having a special property in the goods, might insure them for the joint benefit of all concerned ; and that any form of insurance which expressed, or sufficiently implied this intention, would inure to the benefit of the other proprietors, or the principals,' as the case might bo, if authorised, or subsequently adopted by them in due time.

In this case, there being no subsequent agreement, as in the other, for the payment of a proportion of the insurance, it may be proper to notice more particularly, the effect of such insurance at the instance of the one, and the right of adoption by the other.

In the case of Hagerdon vs. Oliverson, it was held, that the plaintiff could recover on the policy against the underwriters, though the former had no personal interest in the article in- . sured; and had effected the insurance without previous authority from the owner, or any adoption of the act prior to the loss. The right to recover rested on the fact, that the plaintiff had effected the insurance as well in his own name, as for and in the name or names of all and every other person and persons to whom the same appertained. The subject of insurance was a ship bound for distant ports, and the owner, for whose benefit it was in fact insured, as disclosed by the declaration, adopted the insurance after the loss occurred, but before the institution of the suit against the underwriter.

Hughes, in his Treatise on Insurance, thus notices that case. He says, the insurance was effected for the benefit of the person for whose security it was afterwards applied, and was intended to cover his specific interest at the time ; and although there was not any specific communication at the time, yet as he was connected in the concern, it was reasona-, ' bie for the merchant"to expect that the party benefited wouid adopt an act, which could be done with no other view, than for Ms benefit. The merchant could not have recovered back the premium from the underwriter, ón account of the uncertainty, whether the party benefited would not adopt the insurance, in respect of which the underwriter would have insured the risk. The party benefited, was not, perhaps, absolutely liable to the merchant for the premium, but was under a moral, if not a legal obligation. Being under that obligation, and the policy having been effected with reference to his interest, an adoption of it by him after the loss, was sufficient.

^ s™^ar Principle was recognised in Ruth vs. Thompson, and in Lucina vs. Crawford, et al.

The cases cited in argument, in opposition to the plaintiff’s right to recover, do not, it is conceived, conflict with the principles already advanced. In Cohen vs. Hannam, a copartnership interest had been insured by one of the partners, as well in his own name, as for, and in the name or names of all other persons to whom the same appertained. The suit was brought by one of the partners; and in one of the counts of his declaration, lie averred the interest to be in himself,; and in another, that it was, in the other partner. It was decided that he could recover on neither, on account of the variance between the “ probata et allegata ” Mansfield, Chief Justice, in delivering the opinion of the court, observed, that the simple question in that case, related to the averment of interest; that the persons interested in the policy were partners; that the action was in the name of one, as if fof his sole benefit; and in that action, he was not entitled to recover. ’ But he doubted not, that in a different form of action, a recovery could have been had. He also maintain-, «d, that previous to the statute of 19 Geo. II. averments of the true interest in the policy weio required, and of course the necessity of them was not referable to the statute;.

Bell vs. Ansley, the principle decided was, that where joint owners of property had caused it to be insured for their joint use, and on their joint account, they could not recover upon a count on the policy, averring the interest to be in one of them only. It was also held, that the necessity of disclosing the interest by the declaration, was not created alone by the statute, (the object of which was to prevent wager policies,) but that, independent of the statute, the underwriters were entitled to have it truly stated on the record, whose interest the policy was to protect. Both these latter cases also recognise the right of an agent, or a part owner, to effect an insurance for the true owners — using apt words for that purpose ; but they also require, that the récord for the recovery of the insurance, shall disclose the true interest,

The case of Graves vs. The Boston Marine Insurance Company, was referred to in Durand vs. Thouron if Co., and contains but little else than an adoption by the supreme tribunals of these states, of the principles of the English cases, which I have reviewed. The opinion by Chief Justice Marshall, maintains, that the policy must express, either generally or specially, the interest of ail concerned ; also, that the interest of a copartnership cannot be given in evidence on an averment of individual interest, nor vies versa. The principle appears to be well settled, that in case of an open policy, the insured can recover only in proportion to his loss 5 and that in case of a valued policy, when the property is greatly overvalued, with intent to defraud the underwriters, the insurance is entirely vitiated, and the insured cannot recover even to the extent of his actual inherent. But in this case, the more material question is, whether an adoption of the insur-anee by the plaintiff, previous to the less, was indispensable to his right to recover. In as much as the insurance was effected by the defendant, not only as an individual owner, but «is trustee, or agent on commission, he constituted himself the representative of tbe entire interest insured — but claimed? not as ^le sole proprietor of it. The particular expressions Qf +pe p0pCy in this respect, are not disclosed by the record ; yet we are left to infer that such also was its import. The defendant having, ■ under these circumstances, received the sum at which the policies were valued, he was responsible to his cestui que trust, or principal, for his due proportion of the amount received, unless the latter has forfeited his right by refusing to allow thé premium — by disclaiming the policy— or by refusing to adopt it in proper time. We have seen that in such cases the assent and adoption of the person benefited by the policy, may be declared after the loss, and is therefore to be presumed, at least for a reasonable time. Having the right of adoption against the underwriter, it can bo no less against the trustee or agent who has received the money. That the sum at which the policy was valued, may have been less than the value of all the articles consumed, does not destroy the right of any, for whose benefit the insurance was effected, to his proportion of the proceeds.

The bill of exceptions does not purport to disclose the whole of the evidence on the trial. No question is presented, respecting the necessity, or sufficiency of any adoption or dis- ■ claimer, between the time of the loss, and the institution of this suit ; nor whether the commencement of the suit was of itself a sufficient adoption of the policy. We cannot, therefore, anticipate these questions. But, in the opinion of the court below, that the plaintiff's original authority for the insurance, or his adoption of it, prior to the loss, was indispensable to the plaintiff’s right to recover, we all think there was error — and for which, the judgment must be reversed, and the cause remanded.

L.

      See p. 240.

       2 Maul. & Sel. 485.

       Highes or^ Ins. 41.

       13 East, 274.

       2 New R. 283. 29_, 307.

       5 Taunt. 101.

      16 East, 141

       2cranch 419

       Hughes on Insur. 44, 45, 386, 387.


author: •By Mr. Chief Justice .Lipscomb :

text:
    J. H. Thorington vs. T. H. V. Carson, et al.

      Errw from Dallas Girv.il Court, — Before the Hon. Reuben Saffold.
    The general rule — 11 That whatever is specifically averred in a bill ire equity, and not denied in the answer, must be taken as admitted,” must be confined to averments of matters within the knowledge of the defendant, a party, or privy to the particular transactions. And, Where the execution of specific articles is averred against parties, who cannot be supposed to be privy to the mode, and time of their execution ; the execution of such articles must be proved.
    In this case, a bill in equity was filed,, to force the performance of ante-nuptial articles between Carson and. his wife. The bill made an exhibit of a copy of the articles, alleged to have been executed, stating that the original was not in the possession or control of the complainant. A portion of the defendants answered, that, to their belief, the articles were not executed as they purported from the exhibit to have been, and that they were not privy to the execution of the original deed. On the trial of the cause, there was no proof of the execution of articles referred to in the bill; but a decree was rsndered against all the defendants. On the assignments of error of Thorington, the trustee, the case came up to this court for revision. As the decision of the court, contained in the opinion, refers solely to the above mentioned points, only so much of the history of the case is given, as is necessary to show the principles determined.
    Peck, and Gqldth watte, for Plajntiff.

      Pickens, contra.

   •By Mr. Chief Justice .Lipscomb :

In this case, the bill was filed to carry into specific execution ante-nuptial articles between Carson and his wife. The bill sets out, and makes an exhibit of a copy of the articles ; alleging that the original is not in the possession or control of the complainant, and it prays that the defendants may be required to answer, “ Whether exhibit A is not a true copy of an original, which was executed, as it purports to be, and what has become of the original deed, of which the said exhibit A is a copy.” To this part of the bill, the defendants Howard, Foster, Mitchell, and Graham, answer — “ That the original articles, of which éxhibit A in the complainant’s bill purports to be a copy, has never been.in their possession, until procured from the office of the clerk of the County Court, on the 11th day of October, 1.825 and it is hereto attached, and prayed to be taken as a part of their answer ; the defendants further answering say, “ they are informed and believe said articles of marriage settlement was not executed until after the marriage of Thomas H. Y. Carson to Anitta Denson,” &c.

T. H. V. Carson, the husband, filed his separate answer admitting that the articles were executed in the manner, and at the date alleged in the complainant’s bill. There is no proof of the execution of the articles of the marriage contract. Nancy Denson, the mother of Mrs. Carson, who seems, from the exhibit A, to have been a subscribing witness, does not appear to have had the original before her, when her testimony was taken. She cannot, therefore, be received as proving the execution by the best evidence, and the absence of the original has not been accounted for in a way to let in such secondary evidence. In fact, the original seems to have been made an exhibit to, and a part of defendant’s answer. And it is difficult to conceive the reason why it was not shown to Mrs. Denson, at the time of taking her deposition.

If the bill had been filed against the husband alone, for the specific performance of the articles of his ante-nuptial contract, his answer admitting the execution of the articles, would perhaps, have been sufficient, without further proof that fact. But this rule cannot apply to this case: the admissions of Carson cannot be made evidence against the other defendants. The general rule that we find in the books, that whatever is specifically averred in the bill, and not denied in the answer, must be taken as admitted, is certainly subject to many restrictions and exceptions. It seems to me that it must be confined to averments of matters within the knowledge of the defendant, a party or privy to the particular transaction ; in such a case it would seem that the positive averment by. one party, of the truth of the fact, ought to be received as tr ue, if not denied by the other. To illustrate the exception more particularly, Carson, the husband, was a party to the articles alleged to have been entered into by him on a particular day. If he had omitted in his answer denying the alleged fact, so specially averred in the bill of the complainant, to have been entered into, in the manner.and at the time stated, his silence might well be construed into an admission of the truth of the allegation. But the other defendants were not parties to the articles, and could not be supposed to be privy to the mode, and the time of their execution. Their ignorance of the circumstances of the transaction, would fender them unable to admit or deny the truth of the facts charged. They have, however, in their answer stated, their information and belief, that the articles purporting to be the ante-nuptial contract, was not executed until after the marriage, thus putting the complainant on proof of their execution, as essential not only to their validity, but likewise' to sustain the morality of the transaction.

The complainant having failed, as we believe, to prove the execution of the articles, so far as the defendants, Howard, Foster, Graham, and Mitchell are concerned, there should have been no decree against them; but as they have not appealed, we feel bound to affirm the decree, on this ground onty’ without entering into an examination of the principle» assumed as the basis of the decree.


text:
    John Stocking vs. The Ex’ors of Conway.

      Error from Dallas Circuit Court — Before the Hon. Sion L. Perry.
    Where A. receives a note on another person, to be applied to the pay- ■ ment of a debt due to him by B, the mere insolvency of the maker of such note, will not dispense with due diligence to collect it.
    A. is bound to demand payment in a reasonable time, of the maker, and to give notice to B. if payment is refused — even if the maker of the note be insolvent.
    This action was assumpsit, to recover the amount of sundry accounts, subsisting in the hands of the plaintiff, against the. defendants’ testator. The defendants, to discharge this debt, had placed in the possession of the plaintiff, certain notes ont one Wiley Saunders, who, the plaintiff alleges, was insolvent. The transfer was made in 1825, and the plaintiff gave .notice of the insolvency of Saunders, to the defendants, in 1828. On these facts, the plaintiff asked the court to charge the jury, that if the insolvency of Saunders was fully made out, the plaintiff was not required to prove diligence in the collection of the notes. But the court instructed the jury, that the plaintiff was not entitled to recover on the original demand, unless he had shown due diligenee. To this charge exception was taken, and the same assigned as error.

      Pickens, for Plaintiff.
    Goldthwaite, contra.

   By Mr. Chief Justice Lipscomb :

This case has been again heard, on the petition of the plaintiff’s counsel for a rehearing, at the present term ; and the court Goncur in the opinion given by Mr. Justice Taylor, in its last decision.

The opinion rendered by Mr. Justice Taylor, is as follows :

The plaintiff assigns as error, the opinion of the Circuit Court, as expressed in the bill of exceptions. It appears, that after the evidence was closed, the plaintiff moved the court to instruct the jury, “ that where the insolvency of the person upon whom the notes were taken, was fully made out, the plaintiff was not required to prove diligence : but the court charged the jury that the plaintiff was not entitled to recover unless he had shown due diligence in the collection of the notes on Saunders.”

This court has frequently determined, that an inferior court was not bound to do more than respond to the motion which was made to it, and if that response was correct, the judgment would not be reversed, although the plaintiff in error, by shaping his motion differently, would have been entitled, under the- evidence, to more favorable instructions.

It was not for the court to determine, in exclusion of the jury, that due diligence had been used. It was the province of the court upon the motion of counsel, or without, if it chose to do so, to instruct the jury what was due diligence — and for the jury to find, whether that diligence had been used. It has several times been decided by this court, that the fact of due diligence, is to be submitted to the determination of the j«ry-

The plaintiff' in this case, asked that the jury might be instructed, that the insolvency of the person upon whom the notes were taken,' dispensed with all proof of diligence in attempting to collect those notes. The court correctly refused to give this instruction. The mere insolvency of such party does not dispense with every effort to collect the money from him. The plaintiff was bound, in reasonable time,, to demand the money of him, and give notice to the defendants of a refusal to pay. And this is certainly, perfectly reasonable, . 1 J J 1 J although a party may be insolvent; that is, as I understand it, unable to pay all his debts, or without visible property ; yet he may be able to pay a part. He may have cash with which to do this, or his friends may be willing to aid him in compounding them — therefore, those passing off such paper bona fide, should be informed of its non-payment, if they are to be made responsible. . ■

The case of Clark vs. Young, does not militate at at all against this position. It was there only decided, that the party passing the note was responsible by the laws of Virginia, if the payor was insolvent, although no suit had been brought against him : but' the principle is expressly recog-nised, that other diligence is necessary ; and it is said by the court, that such other diligence may have been proved.

From the evidence set out in the case at bar, however, I do not think such diligence was used, either in making timely demand of the maker, or in giving notice to the defendants, as the law requires. Although the defendants .were absent from the state, we must presume the agent from whom the notes were first received, was not, and that he still acted, and was known to the plaintiff, as the agent of the'defendants.

The exclusion of evidence by the Circuit Court, was also right. The attempt made was to introduce secondary proof, when it did not appear, but that the primary was within the reach of the plaintiff.

It is my opinion that the judgment should be affirmed.

      Chitty onB. 142 204 209 226 245. ’

       1Cranch 181


author: By Mr. Chief Justice Lipscomb ;

text:
    John E. O’Connell vs. Daniel Walker.

      Error from Mobile Circuit Court? — Before the Hon. Sion ■ L. Perry. ,
    The protest of a notary public, stating that notice was given “ to the agent” of a party of the protest of his paper, is not evidence of such agency, so as to make the notice sufficient.
    Such agency must be proved aliunde before the protest can be produced as evidence of notice. %

    This was an action to recover of O’ Donnell the amount erf a promissory note, indorsed by him to Walker. On the trial in the court below, the plaintiff read in evidence the protest of Thomas Mather, a notary public, stating that notice had been left at the counting house of William R. Hallett, the agent of O’Connell.
    The defendant’s, counsel moved the court to charge the jury, that the protest was no evidence of agency; which charge being refused, the same was assigned to this court as error.
    Goldthwaite, for Plaintiff
    — Cited Aihiris Big. 327.
    Hale, contra.

   By Mr. Chief Justice Lipscomb ;

On the trial of this cause, in the court below, the plaintiff produced and read in evidence the protest of Thomas Mather, a notary public, a copy of which is in the following words, viz;

“UNITED STATES OF AMERICA:
The State of Alabama, > . ' C (ss") City and County of Mobile, i
“ Be it known, that I, Thomas Mather, notary public, dwelling in the aforesaid city of Mobile, duly commissioned and sworn, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and thirty, at the request of the President and Company of the Bank of the United States, did present the original note, a true copy whereof is on the other side written, at the counter of the Bank of Mobile, and demanded payment thereof, to which it was replied, £ it will not be paid for want of funds of the drawer Whereupon, I the said notary, at the request aforesaid, did protest, and by these presents, do publicly and solemnly protest, as well against the drawer and indorsers of said note, as dgainst all others whom it doth or may concern, for exchange, re-exchange, and costs, damages, and interest, incurred, or hereafter to be incurred, for want of payment of the said note. Went to the counting house of Wm. C. Hallet, agen4 of J. E. O'Connell, on the day of the protest, but found no person there to receive notice of the protest. Thus done and protested in the city of Mobile aforesaid; in testimony whereof, Í have hereunto set my hand, and affixed my notarial seal, on the day and year aforesaid.
Signed, THOMAS MATHER,
Notary Public.”

It was admitted that the notice was given in time. The defendant’s counsel prayed the court to charge the jury, that the protest was no evidence of the agency of Hallet, which charge was refused.

There is no doubt, that but for one statute, thti certificate of the notary was inadmissible. This statute provides “that the protest of á notary public, which shall set forth a demand, refusal, non-acceptance, or non-payment of any inland bill of exchange, or other protestable security for money or other things, and that legal notice, expressing in the said protest, the, time when given of such fact or facts, , was personally or through the post office, given to any of the parties entitled by law to notice, shall be evidence of the facts it purports to contain ; and entitle the holder of such security to the damages to which by law he may be entitled.”

We believe that a proper construction of the statute, will confine the notarial certificate, when used as evidence, to the facts enumerated; and as the fact of the agency of Mr. Hal- ' let, cannot by any fail? interpretation of the law, be considered as embraced, it should have been proved aliunde. If this agency had been proved, the certificate of the notary would have been evidence that he had received notice.

For this cause, we believe, the judgment must be reversed, and the cause remanded.

      Ai!c'


author: By Mr. Justice Thornton :

text:
    Peter Maher vs. The State.

      Error from Dallas Circuit Court — Before the lion. ' A. Crenshaw.
    A writ of venire facias, by which a grand jury is summoned, is not void for the want of the seal of office of the clerk who issues it.
    Peter Maher was indicted in the Circuit Court of Dallas county, for an assault with intent to kill. On the trial of the cause, the defendant, by his counsel, moved the court to quash the indictment, on the ground', that the venire facias, on which the jury were summoned, did not issue under the seal of the court, but was merely subscribed by the clerk, in his official character.. The court overruled the motion, and the same was excepted to, and now assigned as error.
    Goldthwaite, for Plaintiff,
    Cired 7 Oomyn’s Dig-. 120 — 18 Johns. 212 — Aikin’s Dig. 298, 278 — 6 Taunt. 452.
    P. Martin, Attorney General.
    — 2 Stewart, 318— Aikin’s Big. 278.
   By Mr. Justice Thornton :

This case, being an indictment for an assault with intent to kill, comes before us upon a reference of the point under the statute, as novel and difficult — Whether the venire facias, by virtue of which, the grand jury, who found the bill, were summoned, was void for want of the seal of office of the clerk who issued it ? A venire facias to summon jurors, as a common law writ, was always cither under the seal of the chief justice, or of the justices of the court of oyer and terminer, or at least of the clerk, when íssüed by him, from an order on the roll.,— The. mode of proceeding in the steps introductory to the trial of causes, both civil and criminal, has been materially alter_ ed, in all the states, from the course of the common law ; and perhaps in nothing more, than in relation to the manner of summoning grand and petit jurors. In New-York, a venire facias is directed by statute to be issued, under the seal ©f ■ the Supreme Court of the state,, as will be seen in the case in 18 Johns. Rep. 212. We have a statute regulating the summoning of juries, in which the writ is required to be issued by the respective clerks of the courts, to the sheriff of their counties, in which, no mention is made of the authentication of the writ. It is conceded pn . all hands, that this, any more than any other process, would not be good at tbe common law,, unless under seal. And it must also be conceded, that it has been the invariable practice, from the existence of our government in its territorial form, down to the present day, to issue this, as also other writs, both original and mesne, without any seal being appended to them. A seal is, to be, sure, a necessary appendage of every clerk’s office of a court of record, in contemplation of law : and our statute, though it makes no provision for the procurement of one, yet supposes its existence, when it allows “ for every necessary certificate, to which the seal of office is required, and for affixing said seal,”, fifty cents. But in no case ofiprocess of any kind, is that seal ever affixed. It cannot be presumed for a moment, that this omission has occurred, either from ignorance of the fact, that the common law is here adopted, except far as it is altered by act of our own legislature ; nor from ignorance of the fact, that a seal is required to be- affixed to all process by that law. I apprehend that the usual omission, has grown out of a construction of our statutes upon the subject, wherein the clerk is directed to issue the writ, to test it in his own name, and to sign it. In regard to the justness this construction of our statutory provisions on this head, lam frank to confess, that I am by no means forcibly impressed with it. The result of all the enactments is, that all the writs shall be issued by the clerk — shall bear test in his name, and be signed by him. Now, as sealing was a common law requisite, I confess I can find no reason for supposing that to dispensed with, beeause of the necessary change in the style, from the name of the reigning King, to the state of Alabama or in the test, from “ ourself at Westminster,’.’ to the name

The force of the objection, made by the, counsel, to the application of the rule of construction, “ expressio unius, est ex-clusio alterius” is fully felt.' It was very properly urged, that however the name and signature might do alone, to a writ, created by the statute, and directed to be authenticated in that-manner, yet it would not exclude the further requisite, of sealing, from the common law writs already in existence the additional requirement being not inconsistent with su.ch. sealing. Notwithstanding this, the opposite construction has, hitherto prevailed, and been followed up by an undeviating ' course of practice, so far as I have known, without being judicially called in question; and we feel constrained to adopt it.. I yield, as applicable to this case, to the influence of the maxim, that “ communis error facit jus,” and in doing so, I feel sustained by the authority of Lord Holt, in Clay v. Sudgrane. He there says, in reference to the recovery of seamen’s wages, in the court of admiralty — “ it is against the statute expressly, though now communis error facit jus.” I would not carry the application of this maxim to the extent there intimated by his lordship j for surely, it does not graduate with sound legal principle to hold, that any usage, or common error, no matter how long persevered in, can abrogate an act of the legislature. However, I think that such long continued usage, may furnish abundant reasons for acquiescing in the construction of an act of the legislature, though erroneou. . 5 especially when such construction appears to be coeval wit!1' the act itself, has progressed without deviation as here, for a quarter of a century,' and is not expressly in contradiction of the act.

The judgment is affirmed.

      Aik. 1). ¡ ¡r;.

       1 Salk. 32.


author: By Mr. Justice Thorn-ton :

text:
    Thomas Terry vs. Miguel G. Eslava.

      Error from Mobile Circuit Court — Before the Hon. Sion L. Perry.
    Upon a contract not to use certain cotton presses for compressing cotton, where the consideration money was paid, and the contract after-wards violated, the damages are to be estimated by the amount of injury sustained : the consideration money is not the criterion.
    In this case, Eslava brought an action of trespass on the case, against Terry, for using certain presses in compressing cotton, in the city of Mobile, in violation of a contract made between the parties. The plaintiff below, had paid the defeu-dar.t twelve hundred dollars, for refraining from the use of these presses. A question arose as to the criterion of damages.- The court instructed the jury that, if they believed the contract had been violated, the consideration money constituted the measure of damages. To this opinion of the court, the defendant excepted, and has brought the case into this court by writ of error.
    Goldthwaite, for Plaintiff:
    The action in this case, was brought for the alleged violation of a contract, and the only question is now as to what is the proper measure of damages.
    The court charged the jury, that the measure of damages was the considerasion money of the contract: We contend, that the damages actually sustained, are the measure. The price stipulated to be paid, was twelve hundred dollars. Can it be contended, that the whoje of this sum could be a just measure of damages for compressing one bale of cotton ? A case in 9 Com. Law R. 204, presents the very principle here insisted on. — 4 Com. Law R. 204 — 8 V/heat. 109, 118.
    The consideration cannot be taken as the damages, otherwise the party might elect to his benefit. — 1 Gallison, 478, 483. If only one bale had been compressed, the contract would har-e been violated ; but suppose the party had, in defiance of his contract, compressed all the cotton shipped from the port, would he have been permitted to say “ I will pay only the consideration price ?” Parties cannot fix the rule as to damages, at pleasure. It would vary. It must be ascertained by law.
    Elliott, contra.

    All the authorities cited on the other side, relate to cases of executory contracts — and the case in 6 Wheat, sustains us in the principle contended for. In what other manner, than by a reference to a consideration of the contract, could the party compensate for its violation ? What was the inducement of the contract ? Was it not the consideration money ? Else why was it paid ? It was paid as the price of the non- ’ user. If violated, then that price was the damage sustained. 7 Johns. 72. '
    The price was not inserted as a penalty, hut was as -liquidated damage?. It was impossible for the jury to know what damages had been sustained — 2 Dallas, 252- — 1 Stewart, 125.
    Goldthwaite, an reply.

      There was no clause in the agreement, that the damages should be estimated at twelve hundred dollars. This is the distinction which exists(-in the case cited from Johnson. The parties here stood upon the terms of the contract, but the damages might have varied from one to ten thousand dollars. It cannot be said this rule would have acted unjustly ; because, before a party violates his contract, he should look to the consequences. The consequences might be sufficient to ruin him, and thus he should be deterred. The case in Johnson shows an alternative. We had no alternative. The case from Stewart, was for not delivering’ cotton, and contained a stipulation. Suppose it had contained no stipulation? Would the measure of damages have been the price of the cotton ? No. The damages would have to be calculated and found out. Suppose I pay money to day, and*perform a contract on to morrow. The measure of damages would be as to what will have been sustained to morrow. If the machine, in this case, had not been profitably used, there would have been no damages : and if no profit at all, could the party have recovered the whole twelve hundred dollars ?
   By Mr. Justice Thorn-ton :

This was an actios of trespass on the case, brought by writ of error from the’Circuit Court of Mobile county; and the error presented for our consideration, is the charge of the court as contained in the bill of exceptions, respecting the criterion of damages. These are alleged to have accrued • from the breach of a parol contract, whereby the plaintiff in ’ error, inter alia, bound himself, in consideration of a certain sum of money, which seems to have been paid, not to use, or permit to be used, certain presses for compressing cotton, in the city of Mobile. It was assumed by the court below, that the consideration paid was the proper measure of damages, in case the jury should believe that the contract had been violated. Now, the consideration of a contract may, or may not, be the amount which a party is entitled to recover, in caso of its breach. Where the contract provides by way of stipulated damages, that the consideration shall be the amount recoverable, those damages, thus ascertained, will not be disregarded, although in point of fact, they may be greater or less than the sum thus agreed upon. In the case presented, we do not consider that there has been any stipulation, regulating the amount of damages which the plaintiff in error shall pay, in the event of a breach on his part; and, however, from the nature of the subject matter of the contract, the ascertainment of them may be difficult; yet that difficulty cannot be overcome or obviated by a resort to the consideration, as ■ their just criterion. There surely was a benefit proposed to accrue to the defendant in error from the non-user of the cotton presses by the plaintiff. The actual benefit which might accrue, would of course, depend upon a variety of contingent circumstances ; so, the injury which he has sustained, is to be estimated, in the absence of any express stipulation, by a reasonable consideration of all the circumstances appertaining to the matter. And although there may be difficulty in determining on the damages ensuing from the breach, it is intrinsic in the subject about-which the parties have chosen thus loosely to contract. The caséis not so moulded by the pleadings, as to present the question of a rescission of the contract; in which case, to reduce the parties staiuoquo, the consideration paid would be sought tobe recovered back; but damages alone are demanded, for an alleged breach of an unrescind-ed contract; which, as we think, may be either greater or less, according to the circumstances proved, than the consideration paid by the defendant in error. -

For these reasons the judgment is reversed, and the cause remanded.


author: By Mr. Chief Justice Saffold :

text:
    Wiley W. Swift vs. John Hill.

      Error from Eolias Circuit Court — Before the Hon. P. T. Harris.
    Where a judgment is rendered against two defendants, and a writ of error is prosecuted in the name of only one of them, the writ may, for that reason, maybe quashed.
    A motion was made in this ease, by defendant, Hill, to quash the writ of error, because it was brought in the name of Swift alone, for the purpose of reversing a judgment rendered on an appeal bond, against Swift and Harris.
    Pickens, for Plaintiff.
    This record specifies no particular road, for failing to work on which, the party was sued. We-insisted on two pleas — ■ that we were not apportioned as the law directs — and that we did not reside in thé beat.
    No person under the statute, is hound to work out of the beat where he resides, except when he is appointed by his own apportioned. In this case, we rely on the fact, that the party was never apportioned at all. But in the court below, the pleas were stricken out. This was error.. Pleas cannot be stricken out, if they contain any substance. The pleas " here contain substance — for they allege that the party was not apportioned, and that he did not reside in the beat where he was summoned to work. These are matters of defence, and consequently, matters of substance. Again, the matter was determined on the affidavit alone. The court should have demanded other evidence.
    Goldthwaite, contra.

    At this time, I submit a motion to dismiss the writ of error. The writ, is taken by Swift alone, when the judgment was against him and another.
    But as to the merits, what is there on the record to autho-rise a reversal ? In the case of Nichols vs. Erwin, this court has decided that nothing can be looked/ to, not shown by a bill of exceptions. In this ease, the action of the court below, was on the evidence before it. Can this court say what that evidence was ? The • pleas were stricken out. How can they be brought to the notice of the court without a bill of exceptions ? The effect of striking out is to remove from the record the matter rejected, and a bill of exceptions is the only mode by which that matter can be brought back. If the pleas had been disposed of on a demurrer, then it would have been different; for in this event, the action of the court is on' record. How can the court know that the pleas here presented, are the same stricken out ? Á different set of pleas might be substituted. But look at the pleas. They are defective in this — they dp not refer to the time when the liability was incurred. ’ They refer to the time when pleaded, and to no anterior time. If the party was not a resident of the proper beat, when pleading, it does not follow that he was not when charged in liability. The plea speaks in the present tense- — and the rule of law is, that it must always refer to the $ime when the action commenced.

      Pickens, in reply. -
    It cannot be said that other evidence was perhaps before the court, because the record precludes the supposition. It says, “ defendant making no further defence, &c.” What is said as to the bill of exceptions, cannot apply here : because the use of a bill of exceptions, is to show what the record does not show — and if the record shows a fact, the bill would be unnecessary. If the pleas were ever filed, they became part of the record; and though the party might be deprived of their benefit, yet they must remain on record. If there bé no pleas sent up, when the record shows there should have been, this of itself, is ground of reversal. It was error to strike out the pleas, bebause if they did not apply, it was a ground of demurrer.
    As to the motion- to dismiss, it cannot be now maintained. The argument to the merits is begun, which is tantamount to a joinder in err.or. But if properly made now, still there is no ground of dismissal. The law does not 'require all the parties to join. The other party was merely a surety.
   By Mr. Chief Justice Saffold :

The j udgment was rendered against Swift, and one William Harris, as his security in the appeal bond. The writ of error is prosecuted in the name of Swift alone; and now the defendant insists, that for’this cause, the writ be quashed.

If a joinder in error could be deemed material, there is none in this case.

This court has on several occasions recognised the principle which is fatal to this writ.—(See Caller vs. Brittain—Webster vs. Yancey, et al.—Eastland vs. Jones, et al. In the latter case referred to, the facts were precisely the same as in this case.

Both defendants in the judgment, should have been made parties to the writ of error ; the same not having been done - the writ must be quashed.

       183,275. •


text:
    John W. Moore vs. William C. Coolidge.

      Error from Monroe Circuit Court — Before the Hon. SioN L. Perry.
    A judgment cannot be reversed for excessive damages where it corresponds with the verdict, and there is nothing in the record conclusively showing that the verdict is unjust or illegal.
    This was an action of assumpsit, brought by Coolidge, as assignee of ail accepted bill of exchange, against Moore, the acceptor. There was but one count in the declaration, which was upon the bill of exchange; the amount of which was charged to be $672. There was an averment of non-payment, but no averment of protest. No plea appears upon the record ; yet there was a jury and verdict. The verdict was for $793 45; being more than the amount of the bill, with interest. There was no bill of exceptions ; and the error relied upon is,, that the verdict hnd judgment are illegal for excess. '
    Goldthwaite, for Plaintiff in error.'
    The ten per cent, damages allowed by our statute on protested bills of exchange, are intended as a compensation for exchange and re-exchange. Such is the design of damages by the common law ; and such is the meaning of the statute. But the reason fails, when the suit is brought against the acceptor ; and the law therefore cannot apply. I will refer the court to Chitty on Bills, 424 — 12 East, 420 — Chitty on Bills, 425, note — Aikiris Dig. 328 — Toulmiris Dig. 68. Where payment is obtained, either with or without suit from the acceptor, it is obtained from the person designated in the bill, and the only damage is the delay and expense of suit; which are com'pensated by the interest and costs.
    Where a statute is introduced to gifect the common law, it must be construed according to the common law. Now we show, that independent of the statute, damages could not be rendered against the acceptor. The statute only fixes the amount of damages, which was uncertain before. In New York, the rule is different. But the decision is wrong : it was made only by a bare majority of the court. If it be contended that damages may go against the acceptor, yet by our statute, a protest is essential to the giving of the damages allowed. See the 4th and 6th sections of the act referred to ; also, Chilly on Bills, 311, as to the English decisions on the subject. ■ " .
    In this caso, it does not appear that there was any protest — See 2 Chilly's PI. 46, 57, 58 ; by which it will appear* that the precedents all set out the protest. Precedents are not authority ; but they may very properly be consulted, to aid in giving authorities their proper application ; and where they concur invariably, they will go far in sustaining a position.
    . Stewart, contra.
    The court cannot consider the question, made by the counsel for the plaintiffin error. The verdict was given, and the judgment rendered as on plea filed. If the record shows no plea, this cannot alter the case. The defendant appeared ; and if he filed no plea, it was his own fault. The judgment being in pursuance of the verdict of a jury, will be presumed to be in accordance with the proof, unless the contrary appear by the record.
    But, to the merits of the question: formerly, the damages for the non-acceptance or non-payment of bills of exchange were not fixed. They were different in different cases, according to the difference in exchange. These damages became fixed, however, by the law merchant, and the usages of merchants came to be recognised as the law of the land. The idea of exchange no longer governs. Our statute has dispensed with it by a fixed amount, to wit, ten per cent. The statute gives damages against the drawer and the acceptor. It says, “ damages shall be had thereon.” Damages are not given so. much for difference of exchange, as to compel punctual payment of commercial debts. Checks even draw damages : all papers of this character are put on an equal footing, except where they are under twenty dollars; The presumption, when a bill is drawn, i s that the acceptor has funds; that he owes the amount. Punctuality on the part of the acceptor, is'important to commercial confidence. Can the acceptor be exempt from damages, he owing the amount, when if recourse should be had to the drawer, he would be liable , to these damages ? I draw on B, who owes me for $1000 : shall I be liable-to pay $1100, while he would only be liable to pay 31000 ? Whose fault would it be that the debt was not paid punctually. Not mine, surely, but his. He then ought to be liable to damages.
    The New York statute gives damages over and above exchange — 12 Johns. 17 — See also Chitty on Bills, 426.
    But as to the protest. There was a protest in this case ; which appears in the record sent up from the court below. But it is not necessary that the protest should be set out in the declaration. The object of the protest is to give notice, and thereby secure damages. The language of the statute of our state, in regard to the notice and protest, relates only to the drawer. The usual form is not to aver protest in the declaration. Its use is to enhance the damages on the trial. The declaration was good without such averment. There was no ground for demurrer. This objection, however, was not1 made on the trial below, and now the party is entirely precluded from making it.. If the objection were a good one, this court, from the record, is bound to presume that it was Was waived in the court below*

      CrOLDTHWAITE, in reply.
    The rule of law is, that the party cannot recover more than ■he asks for. Suppose a case where the plaintiff sues for one hundred dollars, and the jury gives a verdict for ten thousand ; would there be no relief on the ground of error ?
    If protest must be made to charge the drawer or indorser with damáges, and if the acceptor be liable to damages, is not the same rule applicable as to him, to fix his liability ? The counsel for defendant in error rests his argument altogether -on the 4th section of the statute, to which he refers; but this will not do ; the 4th and 6th sections must be taken together, for the proper understanding of the. law. The rule as to bills is laid down in the 6th section; and the rulé as to other papers, is laid down in the 4th; the 6th section does not fix the damages on any party. It merely refers to damages. What damages? Those of exchange and re-exchange; and .against the acceptor none were recoverable.
   By Mr. Chief Justice Saffold :

Coolidge brought assumpsit in the Circuit Court against the plaintiff in error, as acceptor of a bill of exchange for $672; the same having been indorsed to the former.

The record shows a verdict and judgment for $793 45, which is more than the amount of interest which could have accrued upon the bill. The .counsel for the plaintiff in error, insists that the excess must have been allowed as ten per cent, damages, for the non-payment or protest of the bill, and which he insists was unauthorised by law. This is the only assignment of error riow relied upon-r-that the jury rendered a verdict for more damages than the law authorised.

The argument embraced fully the question, whether or not, in an action against the acceptor of a bill of exchange, the plaintiff can recover the ten per cent, damages, under’ any circumstances. The counsel for the present defendant, maintains the affirmative, but contends that the question is not presented by the record, and cannot be considered in this case.

It is true that the record contains no bill of exceptions, or any thing showing any opinion or instructions of the court on pny point of the case, unless it be in rendering judgment in strict pursuanoe of the verdict. The mistake or error in the verdict and judgment can only be presumed, on the hypothesis, that the writ and declaration state correctly the amount of the bill — that they do may be very probable, but this presumption i,s not sufficient to set aside the verdict. The law has prescribed a different remedy in case of an unauthorised verdict ; this is by motion for a new trial in the court below : or if the illegality originated in the instructions of the court, and exceptions had been then taken and spread on the record, the same wpuld have become subject to the revision of this court, in error, In this respect the effect of a verdict is entirely different from that of a judgment by default, nil elicit, or on demurrer, &c.: in those cases the court is authorised “ to enter judgment for the debt or demand, and interest thereon, to be calculated by the clerk of such court up to the time of' rendering judgment, without the intervention of ajury.”

The provisions of the later statute, authorising this court, where there has been a miscalculation of interest, or other clerical misprision, in entering judgment, to order the same be amended at the cost of the plaintiff in error , are equal \ ly inapplicable." The judgment corresponds with the verdict, and there is nothing of record conclusively showing that the latter is unjust or illegal; nor is there any intimation of dissatisfaction with it at the trial, when both parties appear to have been present, to maintain and defend their rights.

Under this view of the case we cannot decide, therefore, it, is unnecessary to consider the principle relied on by the counsel for the plaintiff in error.

      Aik. I). 269.

      Aik. D.


author: By one of the Court ? By Mr. Chief Justice Saffold:

text:
    John W. Koin vs. Robert McIlvaine & E. G. Collier.
    (Motion to dismiss for the want of writ of error.)
    An appearance by defendant’s counsel on the docket, is not such a waiver of a writ of error, as to cure the want of it.
    An allusion in a bond, of record in the case, made by way of recital, refer-ing to the case as an appeal (the bond bearing date-subsequent to the term at which judgment, was rendered) is insufficient to show to this ' court that an appeal was applied for or granted. '
    When three terms have intervened, without any showing to the court of the existence of any writ of error, or appeal, and without the prosecution of a certiorari, to obtain the writ of error, it is cause of dismissal.
    Goldthwaite, for Defendant,
    Moved to dismiss this cause for want of a writ of error.
    Stewart asked that a certiorari might be issued, to bring ,up the writ of error : or if the court would hot grant this, he asked that the trial might proceed : the plaintiff in error was ready; and as this case had been here for several terms, if was too late to dismiss for want of a writ of error.
   By one of the Court ?

Can you cite any case where this court has dispensed with a writ of error ?

Stewart. — I do not recollect any case of the kind. But this case has been continued from term to term, without any motion to take advantage of the defect: is the party now to be entrapped by this motion ?

The bond speaks of this ease as an appeal. The bond is certified by the clerk ; and it is by the certificate of the clerk that appeals are made known to this court. Is not this evidence of an appeal ?

By Mr. Chief Justice Saffold:

The record appears to have been filed 10th January, 1833. During the same time a special certiorari was ordered to bring up the writ of error ; which issued in March following, but of which there has been no return.

At each of tb,o three succeeding terms, the cause appears to have been continued ; but there has been no waiver of the writ of error, unless an appearance by the defendants’ counsel, on the docket, would constitute it. This would be sufficient notice of the writ, if it was regularly before the court. Not so, however, in respect to the existence of the writ of error, which must be the foundation of the procedure in this court, and our only warrant for entertaining jurisdiction in civil suits, except in cases of appeal. It is insisted that this , may have been an appeal, as a bond of record alludes to an appeal, in which it purports to have been taken. This allusion having been made only by way of recital, in the condition of the bond, and which bond is understood to bear date subsequent to the time at which the judgment was rendered, it is insufficient to show that an appeal was applied for or granted.

We have heretofore recognised the principle,. which appears to be as salutary as any we can adopt, that in the event of the death of a party, pending a writ of error, if the adverse party, or the representatives of the deceased, fail for two terms, including that at which the death was suggested of record, to institute and regularly pursue the proper means for supplying the want of parties, the suit will be abated. By analogy, the principle should be the same in a case like this. Here, three terms have intervened, without any showing to the court of the existence of any writ of error, or appeal, and w ithout the proscution of an alias certiorari, to obtain the writ of error.

A joinder in error, as we have formerlyheld-(Tombeckbee Bank vs. Freeman, ) or an express waiver of the writ, would supply this defect: but we cannot considér the waiver sufficiently implied by the appearance of counsel on the docket, or the continuances.

The writ of error must therefore be dismissed.

      Al. Rep.285-


text:
    Littleton Lecat vs. George F. Salle.
    (Motion to dismiss.)
    When a citation has been isáued, but not served upon the defendant in error, a sci fa. ad awd is the proper process to coerce an appearance.
    A motion to dismiss, for want of service of a citation, when made at. the third term from the filing of the record, (no sci. fa. having issued,) will be sustained, unless the plaintiff make the requisite showing of surprise.
    A motion to dismiss for" want of service of process, is not such an appearance to the action, as to supersede the necessity of service of process.
    Salle moved tt> dismiss, for want of a citation. Something was said by the court about the same motion having been made at last term, and overruled.
    Goldthwaite. — The defendant appeared at last term.He appeared and moved to dismiss the case for want of a citation, as will appeár from the record. The appearance which he then Made cures the defect which he now complains of.-

      Salle. — An appearance to dismiss is not an appearance to th'e cause. I knew nothing of the case from the information of the plaintiff. It was by mere accident that I knew it was on the docket. I appeared as amicus curias. The motion was a side bar motion. If the gentleman’s argument were good, no case could be dismissed for want of giving the party notice. Merely because I made my bow to the court, suggesting that the case was irregularly there, he insists that I have entered my appearance to the cause. ,
   By Mr. Justice Thornton :

The question presented in this case, by the motion of defendant, is one of practice, which it is desirable to have settled. The writ of error was returned to this court, with the transcript, at January term, 1833. No citation accompanied the record ; but a certificate of the clerk shows, that one was issued', with the writ of error.' This is the third term since the filing of the record; and up to this time there has been no service of any process upon the defendant, to bring him into court. A motion was made at the last term, by the defendant, to dismiss the writ of error for want of such notice, and overruled. At this term the motion is renewed by the defendant, and is resisted on the ground that a similar motion was heretofore made, and also that the mere making of the motion was such an appearance as superseded the necessity of any process. By former /decisions 'of this court, it is held, that where no citation ever issued from the inferior court, on motjon) tjje wrjt 0f error would be quashed.* If one did issue, but was defective, or not served in time, then a sci. fa. ad aud. from this court, was the proper process to coerce an appearance.* It has been settled, that where process is necessary to issue from this court, in the analagous cases of scü fa., as representatives of a litigant dying after the cause is brought into this court — that a failure for two terms to pro--secute the writ would be cause to dismiss the writ of error, on motion.

. The motion made in this causé, at the last term, wás pre.mature, and therefore overruled. It is competent, however, now to make it, and it will be entertained, and granted, unless the plaintiff make the requisite showingof surprise, by the supposed effect of the premature motion, and decision thereon, to be equivalent to the service of process. .In which case, the writ of error will not be dismissed, but sci. fa. ad. aud. awarded»

      A1. Rep. 97

      Al. Rep. 183