text:
    Williams against Smith.
    To constitute a blockade, so as to affect a policy of insurance by a violation of it, there must be an actual existing force before the port, at the time it is entered. The animus revertendi of an obsidiary fleet does not continue the blockade, nor is the entry of a neuter, after being -warned, a breach of his neutrality, if the blockading force be not before the port. If a vessel be driven into a port of necessity, and a pestilential disorder break out, which renders it impossible for her to pursue her voyage, it is a loss within the perils of a policy.
    This was an action on a valued policy, on the cargo of the American ship Prosper, from New York to Algiers, with liberty to touch at Cadiz. Premium 15 per cent, with the usual clause against contraband, but in the margin was written “ on naval stores.” The cause came before the court on a motion for a new trial.
    The case read, at the argument, occupied the court for an hour; but it is conceived the important facts which it presented are only these: The plaintiff was owner and master of the vessel, and part owner and consignee of the cargo. Tor this he had signed a bill of lading to deliver it at Algiers to his associate, Sullivan, or his assigns, &c* The vessel sailed on the voyage insured, on the 20th of May, 1800 with a cargo, principally of naval stores. On the 18th of July she experienced severe weather, that continued until the 16th. In this time she labored so much as to work all the oakum out of the quick work on her starboard side, and her bulwark being stove in, cutwater started, and plank shears split fore and aft, she made so much water as to be under the necessity of pumping every quarter of an hour, bringing up great quantities of *'tar, which occasionally choked the pumps to such a degree, as to require taking out and clearing the boxes. In addition to this, one pair of the main shrouds were carried away, and although the leak was in some degree stopped with swabs, still they were obliged to keep the pumps agoing. Having, however, moderate and fair winds, they were enabled to proceed, notwithstanding two men were, from sickness, rendered unfit for duty. On the 3d of July the Prosper was boarded, off Cadiz, (according to the testimony of the mate,) by a British 74; but according to that of two others, by a frigate, who endorsed her papers, and forbade her entering Cadiz, as it was blockaded. This notice was, in the cross examination of me M’Cann, a witness in Spain, said to have been mentioned to him by Captain Williams as a warning from the English fleet. On the fifth, the wind coming ahead, and the captain then discovering a pair of the larboard main .shrouds carried away, determined, after consultation with the mate, to bear away for Cadiz, for the preservation of vessel and crew, being unable to beat against contrary-winds. In consequence of this resolution, they put about, and arrived the same day at Cadiz, though the same wind was fair for St. Lucar’s and St. Mary’s, which are both seaports, at which repairs may be made, and only a few miles distant from Cadiz, but bar-harbors requiring a pilot, though less difficult of entrance than Cadiz. At the time of passing these ports, no pilot came off, the vessel not laying too for the purpose of taking one on board ; nor was it clear that the blockading fleet, which during the years 1797, 1798, and 1799, had remained at anchor off Cadiz, was at this period actually before that place, having sailed in pursuit of a French fleet, leaving however, three or four frigates to continue the blockade; a force sufficient to render the entrance dangerous to merchant vessels; though the Spanish armament, then in Cadiz, consisted of 20 or 80 sail of the line. Notwithstanding this, from the evidence of a Mr. Mumford, who had, about the middle of July, been warned by one of those frigates not to enter Cadiz, there was a presumption, that even then the British squadron was at Gibraltar, about 14 leagues distant; and, on an appearance of an attack from the British ships, the Prosper was herself, while at Cadiz, ^ordered further up the harbor. Her leaks continuing, the captain, on the 16th of July, applied to the consul of the United States to direct a survey on his vessel and cargo. This accordingly took place, under the inspection of three American captains, who certified that the ship, from her leaky state, wanted repairs, for which purpose it would be necessary that she should be sent to a proper place to unload her cargo, much of that part consisting of tar being pumped up. In consequence of this, more than half of her lading was taken out, and the vessel herself moved up to Putnall, the usual place for repairing, as the bay of Cadiz was too rough for what she required. Whilst there, a species of epidemic fever broke out, which prevented all business, and caused even the custom-house to be shut up, so that it was impossible to obtain permits for taking tha cargo from where it had been landed and entered for exportation. Hoping for a speedy removal of these impediments to her departure, the captain of the Prosper, after completing his repairs, and paying for them by a sale of part of his cargo, dropped down to Cadiz, but was, on the 14th of October, iu a tremendous levanter, obliged to cut his cables and drive to sea. The second day of the tempest, which continued for three in the utmost violence, they discovered three feet water in the hold; and though the storm then abated, they could not return to Cadiz until the 24th. The injury they sustained was increased, by having knocked a hole in the side of the vessel on some rocks; and from the part of the pitch, which they had on hoard, having been floated by the water in the vessel, so as, according to the mate, to dash to pieces many of the barrels, the contents of which was necessarily lost. On regaining Cadiz, another survey was held, by the return of which, it appeared, that the cargo both on shore and on board, from the heat of the climate and violence of the gale, was deteriorated more than one half, of its original value. It also was in evidence, that the whole would not have produced enough to outñt and repair the ship for the completion of her voyage, her provisions and stores having been expended in maintenance of the crew, who had been retained to take care of her cargo. To obtain money on bottomry was impossible. *On the 15th of November, Williams formally abandoned the vessel and cargo to the underwriters, and made a regular entry of it in the office of the Consul for the United States. On the 29th, the Prosper was attached by an order from the Royal Consulado of the city of Cadiz, for money due on a bottomry bond given to a Mr. Masaclc, of Amsterdam, by one Lewis Ournier, on the procuration of Cassimir Delavigne & Co. of New York, from whom the ship was fairly bought by the plaintiff. Under this attachment, the vessel was sold for 1,925 dollars — her price, by the bill of sale, was 3,500 dollars; for what amount she was bottomed did not appear. The crew consisted of the master, mate, 4 hands, a cook, and a boy, which appeared was such a crew as Americans, who generally sail with fewer hands than other nations, might go to sea with; though, for a vessel of the same tonnage as the Prosper, the witness who testified on this point, said he would not choose to do it, notwithstanding one had, with a similar number, come from Europe to the United States. Upon these facts, the learned judge before whom the cause was tried, charged, with respect to the blockade, that if the jury were of opinion Cadiz was blockaded, by a competent force, and the ship in question not forced by necessity to enter that port, and nevertheless did enter it after notice, their verdict must be for the defendant.
    2. That if they were of opinion the crew was not competent for the voyage, they would find in the same manner.
    3. That if the seizure under the bottomry bond was made before the abandonment at Cadiz, the defendant would also be entitled to a Verdict; but if the abandonment was previous to the seizure, the plainti.fi" would have a right to recover for a total loss.
    4. That if the cargo was injured exceeding a moiety of its value at the time of abandonment, the right of the plaintiff would be the ^ame.
    5. That any damages which arose in consequence of the fever at Cadiz, were within the perils of the policy.
    ' 6. That if the jury should find in favor of the defendant, on either of the two first points, it would be sufficient, and in that case it would be unnecessary to examine the other points submitted to them.
    *On this charge the jury brought in a verdict'for a total- loss, voluntarily assigning the following reasons for their thus finding:

      1. That they considered the port of Cadiz as partially blockaded, and that the going into that place was therefore justifiable, especially as the blockade was well known in New York before the Prosper left that port.
    2. That they considered the crew as competent, the ves sel having arrived in safety; but they did not say, nor did the judge understand them to mean, that they founded their verdict on this point upon that reason alone.
    3. That the cargo was damaged, exceeding a moiety of its value, at the time of its abandonment.
    4. That the seizure of the vessel having taken place subsequent to the abandonment, they did not consider it as affecting the plaintiff’s right.
    To the case of the defendant, containing the antecedent circumstances, were subjoined by the plaintiff the following amendments:
    1. That the jury, in assigning the reason for their verdict, expressed themselves on the question, whether the port of Cadiz was blockaded or not, at the time the Prosper entered; for they found the fact that it was not blockaded so as to affect the insurance.
    2. That they further declared their finding to be, that it was, after the resolution to put into port to repair, as advisable to make for Cadiz as for any other port.

      Bogert, for the defendant.
    The verdict is against law and evidence. Entering a blockaded port after due notice, is a violation of neutrality, and discharges the insurer. The plaintiff, in the present case, 'insists, first, that there was not any existing blockade at the time when the Prosper entered Cadiz, and that if there was, still she was compelled to do it from necessity. The probability is, the English fleet was before the port, as the plaintiff himself declared he was warned by the British fleet not to enter. Besides this, there is strong ground for presuming the blockading squadron was at Gibraltar ; and that, from its contiguity, must be considered as before Cadiz. But, the evidence is direct tc Bhow that the part of the fleet left to continue the ^blockade, was sufficient to render all access dangerous to merchantmen ; if so, it is enough. Marsh. 827. The case of the Mercurius, 1 Rob. Ad. Rep. 80, 82, 137, 138, 139. The Fiad Oyen, lb. 144, 146. The Hen-rick & Maria, lb. 150. The Vrow Judith, lb. The quantum of force is immaterial; it is not an object of neutral discussion.' But the evidence does not prove it incompetent. The 20 or 30 sail of the line within the harbor, might have been in a disabled state, with masts and yards struck, and every way unfit for sea; a circumstance by no means improbable, as the case shows they had been shut up for nearly 4 years. Had even the whole fleet left its station, it would not have been, from that circumstance, lawful to enter Cadiz. An occasional departure never raises a blockade. The Columbia, 1 Rob. Ad. Rep. 156 — 159. The Hu,tige Hane, 2 Rob. Ad. Rep. 124. The Welvaart Van Pillaw, lb. 128. The Jonge Petronella, lb. 131. It is clear, then, notwithstanding the finding of the jury, who could not determine, on this point, that the blockade existed; and it is equally clear there was not any necessity to break it. From the 15th of June to the 5 th of July, the Prosper had been enabled to continue her voyage; in that interval no new accident had occurred. Allowing the head wind, which prevented keeping the course for Algiers, still St. Lucar’s and St. Mary’s were to leeward, and for either of those places that very wind was fair.
    Livingston, J. I think those ports must, from their situation, have been blockaded, if Cadiz was.

      Hanson. They not being ports of naval equipment, like Cadiz, were not included in the blockade.
    Lewis, Ch. J. Was there not a permission to touch at Cadiz ?

      Bogert. Yes. But as the blockade was known here when the policy was underwritten, the liberty to touch was given under the idea that it might, from our distance, have, in fact, been raised, though the news had not reached us. It was therefore accorded, that the assured might avail himself of this circumstance, not that he might jeopardize the property. Having, therefore, entered the port, it was a complete violation of neutrality, and though the loss happened afterwards, the underwriter was discharged, because it was impossible, during the voyage insured, ever to place the vessel out of danger; breach of blockade being an offence that is *never purged. The JTur-tige Sana, 2 Rob. Ad. Rep. 124. Admitting, however, this to be against us, still the loss was from a peril not within the policy. It was the consequence of a delay arising from a pestilential fever; and though the instrument, after enumerating the particular risks insured against, adds, “ all other perils,” &c. still, according to the known rule of law, they refer to thosQ only of the same kind. The detention and inability to reload, on account of the epidemic, is not to be likened to a quarantine, for that is an act of government, a restraint within the hazards mentioned. Even a seizure by a mob is not covered by the word “people.” Nesbitt v. Zushington, 4 D. & E. 783. The injury arose from an event not contemplated by either party, and, therefore, though felt by one, does not furnish a claim against the other. The loss, too, is found to be 50 per cent, on the tar only; this rendered it a partial loss, for the tar constituted but a part of the cargo, and the deterioration, to warrant- a demand for a total loss, must be on the whole, not on a pari.

      Hamilton and Biggs, contra.
    The finding of the jury on the point of blockade was voluntary on their part; it is not relied on by the plaintiff as settling what shall, and what shall not, be deemed a blockade. The amendment confines the verdict to what it absolutely was; finding that the port of Cadiz was not so blockaded as to affect the insurance. The meaning of these words is, that the blockade was known in ISTewYork; both parties acquainted with it, and the liberty to touch given unqualifiedly, that the party might go there if he pleased, and for this fifteen per cent, was paid. There is no adjudication in the books exactly analogous, but from a newspaper report of a case before Lord Ellenborough, the point was ruled in our favor. An insurance was made for Gibralter, at the time the Spanish court had declared it to be in a state of blockade. Though this was by gun-boats only, still if, according to the principles of the defendant, the quantum of force is immaterial, it is a decision in point. The defence was, as here, violation of neutrality by breach of blockade; but, said his lordship, if you. will insure for a blockaded port, and take your premium for it, you shall not set up the pursuing your own contract in order to defeat it. The court is' aware that with us, till a very "'late decision of Lord Kenyon’s, {Stitt v. Wardell, sittings at G. H. after Mich. 1797,) touching was by every man held to include a permission to trade. The continuance of the voyage till off Cadiz with a fair wind is no reason, that a disabled ship as she was, could have proceeded with one that was ahead, when some of her main shrouds on both sides were gone, and two of her crew, since the gale of the 18th of June, had become incapable of duty. Every thing said against the necessity of putting into port, is mere assertion from the inferences drawn by counsel, against the express testimony of the mate, and every other eye-witness, and that her entry into Cadiz was the effect of necessity, and bona fide,,the entry of the cargo for exportation is a proof. The fever, abstractly considered, was not a risk within the policy, but it was the immediate consequence of a peril within the instrument; for it arose from a putting into port occasioned by perils of the sea; and, generally, whenever a voyage is defeated by vis major, or casus fortuitas, it is-within the policy, if there be do mala fides, or it be not the result of the assured’s fault. The voyage was in its course, and the pestilence in this case had the same effect as if it had broken out in the ship, and rendered her incapable of proceeding. In the case of Maggrath and Higgins v. Ohurch, (Ante, vol. 1, p. 196,) the fever in Philadelphia was allowed as an excuse for staying at Wilmington, and if for staying, so for not sailing. The declaration from the captain of the Kent will not establish the blockade, when it is in evidence, that the British fleet had quitted their station before Cadiz, and relinquished their former object, in pursuit of another,, the French. If the position be abandoned bjr stress of weather, or any such event, during which there is a continual endeavor to return and occupy the place that has been left, this animus revertendi will preserve in full force the effect of blockade. But in the present case, the views ®f the hostile and besieging armament were turned in a new and opposite direction. The adoption of a fresh, was a dereliction of the former purpose. It is, however, to be remarked, that on the subject of blockade, Sir William Scott has introduced, as the law of nations, a new system not warranted by that code. He has extended the principles of blockade, in a manner before unknown, and not consonant to more ancient doctrines. * According to them, a blockade was of no longer duration than while the obsidiary force was before the very spot. And this was so determined by the court of errors in the case of Vos and Graves. At all events, as the loss did not ensue from the breach, it does not avoid the policy. According to Sir William Scott, a blockade is said to exist, il the ingress be dangerous. With such a latitude, a few frigates at the mouth of the straits would blockade the Mediterranean. This would be like the proclamation blockade ol the West-India Islands. The decisions of the English Admiralty under its now judge, have also gone the unwarrantable length of ruling, that a vessel sailing for a blockaded port, violated her neutrality in the very inception of her voyage. But the blockade in question was a mere farce 20 or 30 sail of the line confined by four frigates I The supposition of the interior fleet being unfit for service, is not to be entertained, because it does-'not appear. Whether the loss was partial or total, was a matter submitted to the jury, and they have determined it was the latter. In calculating the deterioration to give a right of abandonment, the amount of expenses, outfits, charges, &c. are to be estimated; and if these make the aggregate of loss more than a full moiety, the assured may relinquish the subject of the policy to the underwriter, though one individual article alone was damnified. The voyage was absolutely broken up, for it could not be prosecuted but at an expense beyond what the whole cargo would produce, and money on bottomry could not be obtained. The freight, however, due, could not have been availed of because it was payable in Hew York. Under circumstances like these, every writer, French as well as English, allows of the right to abandon, which could not be affected by a subsequent seizure on the bond, by which she had been bottomed. The plaintiff ought to have brought the premium into court, if he intended to rely on the blockade.

      Bogert and Harison, in reply.
    Though by the law of nations, sailing for a blockaded port is a breach of neutrality, punishable with confiscation, yet by the decisions of Sir William Scott, that great and learned civilian so much complained of, the strict letter of the law has, in consequence of our remote situation, been relaxed. In one of his decisions (The Betsy, 1 Rob. Ad. Rep. 334,) he thus expresses himself, concerning the citizens of this country: *“ It is not unfair to say,, that lying at such a distance, where they cannot have constant information of the state of the blockade, whether it continues or is relaxed, it is not unnatural that they should send their ships conjecturally, upon the expectation of find ing the blockade broken up, after it has existed fer a con siderable time. A very great disadvantage indeed would be imposed upon them, if they were bound rigidly by the rule which justly obtains in Europe, that the blockade must be conceived to exist till the revocation of it is actually notified. For 'if this rule is rigidly applied, the effect of the blockade would last two months longer upon them than on the trading nations of Europe, by whom intelligence is received almost as soon as it is issued. That the Americans should therefore send their ships upon a fair conjecture that the blockade has, after a long continuance, determined, and for the purpose of making fair inquiry whether it had so determined or not, is, I think, not exceptionable. Though I certainly agree that this inquiry should not be made in the mouth of the river, or aestuary from the hV-ckading vessels, but in the ports that lie in the way, and which can furnish' information without opportunities of fraud.”
    A knowledge of this departure from the rigor of the law, induced this policy to be underwritten for Cadiz. The underwriters knew sailing for the port, though blockaded, was not a breach of neutrality, and it was. left to the captain to enter or not, according to the fact of the blockade having been raised or continued. When warned by the Kent, he knew the condition on which the liberty to touch had been granted was at an end. The entering afterwards was a discharge of the policy, for allowing the necessity, which ought, however, to be clearly madó out, St. Lucar’s and St. Mary’s-were -unprohibited places, and both open to him had he stopped for a pilot. By not doing so he broke his warranty of neutrality. The reason why this, from the period of breach, destroys the policy is, because it alters the situation of the property. Cn the same principle rests the inhibition from transferring. In these events, however the policy is annulled only from the time of the illegal act ¿one, and as the risk had previously attached on the whole sum insured, there can be no return of premium. *This distinguishes the present case, and those oí deviations, from others where the risk never was incur* red. In these latter the underwritten is entitled to a re* '.urn' of premium, only because the Hazard of the underwriter never had an inception. For when it has, a return Into the track after the policy is vacated -by deviation, neither gives a claim to a return, nor restores the contract. So here, if the port was blockaded, the insurer is discharged, though the detention from the fever be a loss within the policy. But if it be not, and the putting into Cadiz was the effect of necessity, we allow it was an excuse for remaining there, which might occasion an average loss. As to the decision of Vos and Graves, the court of errors founded its judgment on there having been no blockade. On the part of the plaintiff, blockades by notification are confounded with those de facto. The former commencing by notification are ended in the same manner, and therefore an occasional departure does not raise the blockade. The latter depending on the fact, terminate when the fact ceases. That a vessel having violated a blockade by ingress is, during the whole of that voyage, in delicto, is not the new law of Sir William Scott, bnt the old law of nations, as recognized by Bynkershoek Yattel, and all foreign jurists. See his Q. J. P. lib. 1, c. 11. accord. That the blockade was, if ever intermitted, only occasionally so, is evident from the testimony. Its existence was known in America previous to effecting the policy. The Prosper was, after entering Cadiz, ordered higher up the harbor for fear of an attack from the British ships. This shows a blockade at two different periods, in the interval between which the Prosper entered; and if a belligerant cannot, or dare not, dispute the power of blockading, a neuter can never do it. To attempt to conclude us in any respect by the finding of the jury, is making the very thing we complain of a reason for refusing us redress.

       The words of the court in pronouncing their judgment in this case, will certainly warrant the latitude of the principle laid down in the margin; but a late decision has reduced the law on this point within more reasonable bounds. It lias been subsequently ruled, that an accidental dispersion of an obsidiary fleet does not, where the animus revertendi is preserved, raise a blockade, though there be not any force before the port invested; but that withdrawing the blockading squadron, for other hostile purposes, however temporary, does. Radcliff v. Un. Ins. Co. 7 Johns. Rep. 38. See also the same case, 9 Johns. Rep. 217.

         EYora the next ease it appears the bottomry was for 6,500 dollars

         See the doctrine on this point in Jones v. Schmole, 1 D. & E. 130, n. (a.)

   Kent, J.

delivered the opinion of the court. A motion is made on the part of the defendants for a new trial:

1 Because Cadiz was blockaded, and the ship went in without necessity.

2. Because the fever is not a peril within the policy.

3. Because, at any rate, the plaintiffs are only entitled

to recover, as for a partial loss.

*1. On this first point, we are of opinion, that, on the fifth of July, when the ship entered the port of Cadiz, that port was not blockaded. There was no naval investment of the port; there were no ships there, so as to render it hazardous to enter. ■ The blockade had, in fact, been raised a few days before, in consequence of a naval expedition; and it is sufficient for a neutral, when he arrives off a port, to find it clear of any blockading force. He can only judge from what appears, and if he finds ho blocade existing de facto, it is sufficient. He is not bound to inquire, or wait for events, and see whether the blockade, that once existed, is finally raised; or whether the blockading squadron still retains the animus revertendi. The neutral has no means of knowing when a blockade exists in contemplation of law, as contradistinguished from a blockade in fact; and to impose that knowledge upon him at his peril, would be most unreasonable. The only practicable rule is, that there must be an actual existing blockade, to render it unlawful for the neuter to enter.

The notice that the plaintiff received from a British frigate, or a British ship of the line at sea, several leagues from the port, and some days before the entry, amounted to nothing, if in fact there was no blockade of Cadiz when he arrived there. It is absurd to suppose that that ship or frigate, in the situation it was, constituted a blockade of Cadiz, nor is it to be understood that the commander, of the ship made any such pretension. The plaintiff, therefore, committed no violation of his neutrality in entering Cadiz, and he had liberty to touch there by the terms of the policy.

On the second point, we are satisfied that the damage resulting from the pestilence at Cadiz is covered by the policy. It is not requisite to decide absolutely, whether a pestilence is a peril direct within the policy.

It formed, however, a sound excuse for delay at Cadiz, and if the consequence of that delay was a- deterioration of the subject insured, the insurer must be answerable for the loss.

And with respect to the amount of the damage, we see no reason to complain of the finding of the jury, that it amounted to above one half, and justified the abandonment *of the voyage. The weight of evidence on this point is in favor of the verdict, and there is no fault or neglect imputable to the plaintiff. There was a series of misfortunes, which the captain appears to have made constant and sincere, but unavailing efforts to surmount, and we are perfectly satisfied that the verdict is just, and, consequently that the defendants take nothing by their motion.

Hew trial refused


source: Caselaw Access Project

author: Thompson, J., Livingston, J.

license: Public Domain

text:
    Williams against Smith. The Same against The Same.
    The purchaser of a vessel bottomed, not knowing her to be so, has an insurable interest in her, and the policy underwritten in ignorance of such fact, is not thereby vacated. If, under such circumstances, the vessel ba in the course of her voyage sold under the bottomry, after an abandonment for want of funds to carry it on, the underwriter will be liable on his policy deducting the amount for which the vessel sold, from the sum at which she was valued. When the insured is master and consignee, and joint owner of the cargo, his selling it at a port of necessity, where the voyage was broken up, will be deemed a reception of the goods there by him as owner, and a pro rata freight earned; the insurer on it is, therefore, bAble only for the balance.
    These were two actions on sepárate policies of insurance, on the body and freight of the American ship Prosper, from New-York to Algiers, with liberty to touch at Cadiz. The vessel valued at 5,000 dollars.

      The facts were exactly the same as in the former suit, apon the policy on her cargo.
    It was admitted, that the amount of the bottomry was 20,000 marks banco, or 6,500 dollars.

      The judge before whom the causes were tried, charged the jury, that if they believed the port of Cadiz was blockaded at the time the Prosper entered that harbor, this being a breach of neutrality, would vacate the nolicy. That the lamages and repairs of the vessel having happened, and been made, at distant periods, (the first, between the arrival of the vessel and the 14th of October, when she was blown to sea,'and the second, between that day and the 15th oi November,) were to be considered separately, in determining whether the loss was total; or partial; and that to constitute a total loss, the subject must be injured, or impaired in value to the amount of one half. That the plaintiff appeared to consider the several injuries as merely partial, because he repaired the vessel both before she was forced to sea, and "after her return to Cadiz, 'and previous to her abandonment there. That the wages and provisions during detention in Cadiz were to be deemed general averages; and, lastly, that a pro rata freight was earned as far as Cadiz.
    The jury brought in their verdict in the following words:
    “The jury find for the plaintiff an average loss on the ship Prosper and freight, allowing four-fifths of her freight, or 2,'400 dollars, to have been earned on her arrival at Cadiz. The jury are of opinion, that in making up the ^amount of the general average, the seamen’s wages and provisions should be charged during the detention, on the principle that the detention was unusual, and presents an extraordinary case within the hazard insured against by the policy.”
    A motion was now made for a new trial, on the part of the plaintiff, by whom the following points were relied on:
    1. That the captain’s want of funds to repair the injuries of the ship, and get her to sea, was a just cause of abandonment.
    2. That if the plaintiff’s claim is to be affected at all by the bottomry bond, it only renders him liable to account to the defendant for the value of the ship at the time she was seized and sold at Cadiz, the amount of which sales shows her value.
    3. That the plaintiff has a right to be reimbursed the moneys expended in repairing the ship, whatever may be his right to recover with respect to the ship herself.
    4. That the freight was totally lost, by the voyage to Algiers, &c. being defeated, as no part of it became payable-until the cargo was delivered there.
    5. That if the ship earned a pro rata freight, the plaintiff has a right to apply the proceeds of the cargo which he received, or so much as will be necessary for that purpose.
    On the part of the defendant, the points insisted upon, were, >
    1. That Cadiz was a blockaded port.
    2. That the plaintiff had not an insurable interest in the ship, except for the surplus value, beyond the sum mentioned in the bottomry bond.
    3. That if the vessel was insurable by the plaintiff, still, that as the defendant was deprived of the property abandoned, by the seizure under the bottomry bond, the plaintiff cannot recover.
    4. That if the loss is to be ascribed to the fever, it is not a peril within the policy.
    5. That one third is to be allowed in the repairs, new for old.

      Biggs, for the plaintiff.
    The subject of blockade has been sufficiently argued in the preceding cause. On the first point it is admitted, that if there was a want of funds to ^continue the voyage, it was a legal sanction for abandoning. For allowing her repaired, if unable to fit out for sea, without selling so much as would break up the voyage, the right was still the same. OazehtY. St.-Barbe, 1 D. & E. 187; Goss v. Withers, 2 Burr. 696; Hamilton v. Mendez, 2 Burr. 1209, the third resolution. The second question is in fact this, whether a bona fide owner of a vessel, who does not appear to have given the bottomry bond, has not as extensive an insurable interest as if the bond did not exist. This will depend on, whether the bottomry was then a subsisting lien on the property ? A bottomry given abroad is a charge on the ship only to the next, or, at the utmost, her home port, on her arrival at which it ought to be put in force. If it be not, and the vessel be permitted to sail on another voyage, the lien is gone against a third person, who comes in as a purchaser, without notice, for a full consideration. In this situation the plaintiff st'ands. Though it must be confessed, the Court in Spain has acted on a different principle, it ought not. however, to control our own law. But it is evident, however this may be, the bottomee is not the legal owner; the bottomer cannot at law commit barratry. Leidn v. Suasso, 2 Marsh. 452, 453. So little is the person holding a bottomry bond the legal owner of the ship, that he cannot, by insurance, under that word, cover his interest. Abbott, 117, s. 20; Bobertsons v.-, in this court. Here, then, as we paid, with the money laid out, the full value insured upon the ship, and as she was discharged from the bottomry, by the laches of not putting the bond in force, we were entitled to a verdict for a total lost. But allowing the policy affected by the bottomry, we are to account for no more than the sum produced by her sale, and the balance is what we have a right to claim; as, however, her price was increased by the value of the repairs we gave her, to that extent also we ought to recover. Every reason which will operate in our favor, on the vessel, can, with equal efficacy, be applied to the freight; for this is to be supported only on the principle of ownership. If we have a just demand for any freight, it must be for the whole, the contract being in a gross sum, and not so much per barrel, or cask. In these cases, therefore, as there is no apportionment, the whole being due on arrival at the port of delivery alone, *every loss must be total. ' Paul v. Birch, 2 Atk. 621; Abbott, 244 That the contract for freight was by bill of lading, and not by way of charter party under seal, is immaterial, as would seem from the reasoning in Goolce v. Jennings, 7 D. & E. 381. Bright v. Cowper, 1 Brown! 21. The only exceptions to this rule are, first, where the ship being incapacitated from pursuing her voyage, and the master being willing fo procure another to transport her cargo, the merchant will not agree; secondly, where the shipper consents to reeceive his property at an intermediate port. In the first of these cases the whole, in the latter a pro rata, freight is earned. But the acts of the plaintiff in this respect were all done in the ■character of master. The bill of lading was to deliver to another, his joint interest therefore immaterial.

      Iiarison and Bogert, contra.

    The bottomry »s in itself an insurance pro tanto, and therefore the surplus only can be insured, according to the words of our policies. Was it otherwise, a man might hypothecate three or four times over, insure the full amount, and recover from the underwriter also. It must be supposed that the purchaser took the Prosper with her encumbrance, like mortgaged lands. The maxim of caveat empior shows this, and at all events, as 'the plaintiff was on the spot when she was sold, and authorized to work, labor, &c. for the underwriter, it was incumbent on Captain Williams to have interposed a claim for the defendant. This is such a species of default as must make him liable to us, and therefore ought to prevent his recovery. It lias taken from us the subject matter of insurance, which, after abandonment, he ought to have protected; for if the bottomry was not a lien subsisting, the ship might have been reclaimed. It would seem, however, to be otherwise; for if not, a ship might be fraudulently sent, instantly after her arrival, on a new voyage, and the bottomry thus defeated. The interests of commerce require a different rule. It is to be supposed the purchaser knew of the encumbrance ; if so, it ought to have been communicated, and this would also vitiate the policy. Tor this purpose, everything that has been said, as to blockade, is equally fatal. But there was not any insurable interest, for the amount of the bottomry exceeded the cost of the vessel. Allowing, however, a surplus from the sale even from that *as the jury have found only an average loss, there must be a deduction of one-third, new for old. A total loss on the ship, it cannot be. Her first repairs made her fit for sea, and though, after the storm, her cargo might be more than half deteriorated, that would not justify abandoning the ship, though her decay might authorize an abandonment of the cargo, as it would be a breaking up of the voyage. This shows on her it can be only a partial loss. There is no evidence that she was deteriorated a moiety of her value. The cases cited to show no freight was earned, prove the reverse; ior they were on charter parties under seal, and expressly show the distinction denied. Wherever the master is not requested to take on the goods, he is entitled to pra rata freight. Luke v. Lyde, Burr. 889. And here, as the plaintiff was owner of the ship, and consignee, he cannot, in that double capacity be considered as acting wholly for his own benefit, and to charge the underwriter. As shipper, he was bound to pay; as owner, to receive freight; his actions cannot be construed to be totally as agent for the insurer, to enable him to receive everything and pay nothing. The jury find a pro rata freight earned; this could have been only on the supposition that the goods were received by the plaintiff.

      Hamilton, in reply.
    If the interest of the plaintiff he merely that of an equity of redemption, it is insurable. Allowing, therefore, that the interest was only a surplus, the policy is vaild, and we must recover for that. But not knowing the previous encumbrance, the assurance was made for the whole, and the premium paid for that. Both parties were in the dark; and in cases of mutual error, he who receives a consideration ought to be bound. The Roman code acts on this rule. So Millar, 40, 41, 97. If so, a secret encumbrance is at the hazard of the underwriter. If the vessel had been bottomed at a port of necessity, and on arrival at that of destination, though not that to which she belonged, the bottomry had been put in force, the insurer would have been liable for the whole, though the subject matter was lost to him, and that by the act of the insured himself; a fortiori here, where it was by a *third person. The policy being valued is an argument for this ; because in these the worth of the article insured is agreed on, and if a bona fide interest is shown, it is sufficient. The case of The Astroea, (1 Lex. Mer. Amer. 295,) said to be in point to show the deterioration of the cargo, will not warrant abandoning the ship ; but we were on the trial- prevented from showing the ship was half deteriorated; the judge charging the injuries to be distinct, and not to be considered together. This, we contend, was wrong, as the accumulated amount of repairs necessary, carried them beyond the half, though the money was not actually expended, but only seem to be necessary, and the impracticability of procuring it, obvious. If it appear that the whole cargo will not suffice to fit out, and money cannot be obtained on bottomry, it can never be necessary to sacrifice the cargo and expend it before you can abandon; yet this is the result of the defendant’s doctrine as to the want of proof of a deficiency of funds. If a man act in two capacities, one as agent for himself and another, and also representative for a third person, and his conduct will apply to the totus homo, it is a rule so to consider it. The cargo, then, was delivered to him as agent, for the underwriters alone, and this is corroborated by the entry in the consular books, which evinces on whose account the reception and sale were made.

       A policy of insurance being an instrument by which the underwriter agrees to indemnify for losses by certain perils, the very substratum of the contract seems to require, that there should be in the assured an actual mterest, either legal or equitable, which is capable of suffering a loss from the perils insured against. Eor, if there be not any interest, there cannot be any loss; and if there be not any loss, there cannot be, under the contract, any right to indemnity. Upon this train of reasoning, the court of errors reversed the judgment given by the supreme court on the case in the text, Eor, as the vessel was, by the valuation in the policy, estimated at only 5,000 dollars, when there existed a previous bottomry for 0,500 dollars, and she sold for no more than 1,925 dollars, it was held, that there was not any legal interest, that being in the bottomee; or any equitable interest, as there was not any surplus value beyond that for which she was hypothecated. Smith v. Williams, 2 Caines’ Cas. in Error, 110.
      A strict deduction from the same premises, would appear to lead to the total exclusion of wager policies, without the interference of legislative provisions. Yet, as actions on wagers themselves have been held to be maintainable, so wager policies have received the countenance of courts of law. Clendining & Adams v. Church, 3 Caines’ Rep. 141, and the cases cited there. In Massachusetts, however, contrary and purer doctrines seem to prevail; “or wager policies appear to be considered there as absolutely void. Amory v. Tyng, 2 Mass. Rep. 1.
      An interest, to be insurable, may be either legal or equitable, vested or contingent; but it must be a lawful interest, and there must be a subject matter in esse, in which it exists, or out of which it may arise.

        The interest must he a lawful interest-, that is, such as is within the protection, and within the policy of the law. Therefore, the interest of an enemy is not insurable; (Brandon v. Nesbit, 6 D. & E. 23; Bristow v. Towers, ib. 35,) nor of a subject trading with an enemy ; (Potts v. Bell, 8 D. & E. 548,) nor of a neutral in goods to an enemy’s port; (Bromley v. Besseltine, 1 Camp. 75,) nor from it if he be there resident, and carry on trade; (M‘Connell v. Hector, 3 Bos & Pull. 113,) nor that of mates or seamen in their wages, ora specific article by way of douceur or extra compensation beyond wages; (Webster v. De Tasset, 7 D. & E. 157,) nor that of a lender of money to a captain of a vessel to be paid out of the freight. Wilson v. Royal Ex. Ass. Co. 2 Camp. 623. But where the interest is such as is within the protection and policy of the law, it is insurable; as that of a governor in a fort used as a trading post; (Carter v. Boehm, 3 Burr. 1905,) of a captain of a vessel in his wages; (King v. Glover, 2 N. R. 206,) or of a neutral in goods from an enemy’s to a friendly port. Bromley v. Hesseltine, ubi sup. But quiere as to a policy in such a case, "at” and "from.”

        The interest must be legal or equitable. If it would not be acknowledged either at law, or in equity, it is not a subject of insurance. Therefore a person who has paid for a ship cannot, in England, insure the freight, unless his name be in the certificate of registry; (Camden v. Anderson, 5 D. & E. 709; Marsh v. Bobinson, 4 Esp. Rep. 98,) because, under the British register act, even a conveyance is absolutely void, if the name of the purchaser do not appear in the certificate; aliter with us, both as to ship and freight, even of an English vessel, unless the British register act be proved, for which parol testimony is not sufficient. Kenny v. Clarkson, 1 Johns. Rep. 385.
      A mere power, whether given by statute or otherwise, “to take into pos session, manage, sell and dispose of ” ships and cargoes detained by the orde of government, does not create an insurable interest. Lucena v. Craufurd, 2 N. R. 269, unanimously confirmed by ail the judges in the house of lords on the 29th of June, 1808, and overruling, on this point, the judgment in the same case, 3 Bos. & Pull. 75, and Craufurd v. Hunter, 8 D. & E. 13. Ii is therefore doubtful how far prize agents and others ejusdem generis, have any insurable interest in captured vessels and cargoes sent to them, unless *o far as their own commission, and liens for balances due, may extend. But if there be either a legal or equitable interest, though undivided, it is insurable ; as whore a statute enacts that property captured from the enemy shail be divided among the captors, their interests are insurable oven before condemnation. Stirling v. Vaughan. 2 Camp. 225; Boehm v. Bell, 8 D. & E. 154; Le Oras v. Hughes, Park, 358.
      Where there are a multiplicity of interests, either legal or equitable, in the same subject, each may be the basis of a separate policy, according to the right of the underwritten. Therefore, a mortgagee of goods, after the mortgage has become absolute, may insure his legal interest, and the equitable one of the mortgagor; (Smith v. Lascelles, 2 D. & E. 188, per Ashhurst, J.,) a third owner of a ship, his third of the freight; (Sansom v. Ball, 4 Dall. 459,) so, though he be entitled only in virtue of a purchase of a third of the tonnage for tho voyage; (id. ibid, but see Biley v. Delafield, infra;) an endorsor of a bill of lading, who has transferred only the net proceeds, his interest in the surplus value; (Hibbert and others v. Carter, 1 D. & E. 745,) a factor to whom a trader is indebted, the amount of his debt, in a policy on goods which he is advised will be shipped to him; (Godin v. Roy. Ass. Co. 1 Purr. 489,) for, wherever the law would give a man a lien on property, to that extent he may insure; (Wolfe v. Horncastle, 1 Bos. & Pull. 316,) and, from the case of Godin v. Boy. Ass. Go., it seems that a hona fide policy on the expectation of the consignment advised, will not be defeated by the consignor’fs making, against good faitlj,. a valid disposition of the promised remittance.
      A surety in a vioe-admiralty court, to whom a vessel and cargo are delivered over to indemnify him against loss, for becoming security on entering an appeal, has an insurable interest to the whole amount of both. Russell v. Un. Ins. Co., 4 Dall, 421. So a part owner, who charters the o.ther half of the vessel under an agreement to pay a certain sum in case of her loss, may insure her full value without disclosing the nature of his interest. Oliver v. Green, 3 Mass. Rep. 133. Note, however, the diversity between the British register act, and that of the United States.
      If there be a legal interest, it is not necessary that it should be beneficial, in order to render it insurable; therefore, a mere trustee, owner of a vessel not entitled to the privileges of the American flag; (Rhind v. Wilkinson, 2 Taunt. 237,) a fortiori, if it be beneficial, though merely equitable, as that of a cestui que trust for whose use goods are sent to a third person. Hill v. Secretan, 1 Bos. & Pull. 315.

        The interest' may he contingent; as tho commissions of a consignee; (Flint v. Le Messurier, Park, 355,) or of a captain on sales; (King v. Glover, 2 N, R. 206,) or the compensation of a supercargo out of the proceeds or goods of an adventure under his direction; (Robinson v. N. Y. Ins. Co. post, 357,) or the expected profits on a cargo belonging to the assured; (Grant v. Parkinson, Park, 354; ] Marsh. 97; Hodgson v. Glover, 6 East, 316; Tom v. Smith, 3 Caines’ Rep. 245; Mumford v. Hallett, 1 Johns. Rep. 433,) or those on a cargo to be purchased by investing, or exchanging another cargo. Barclay v. Cousins, 2 East, 544. So the interest of a creditor in the life of his debtor. Per Lord Kenyon, in Anderson v. Edie, Park, 575 ; Godsall v. Boldero, 9 East, 72. But there must be an actual existing subject capable of specific designation out of which the interest insured is to arise; therefore the expected profits or commissions on a cargo expected to be shipped, are not insurable. Wood v. Knox, Park, 356; 1 Camp. 543, S. C. Where the interest is of a particular kind, it must be disclosed and underwritten as such; as those of bottomry and respondentia; (Black v. Glover, 3 Burr. 1394; Robertson & Brown v. Un. Ins. Co., 1 Johns. Cas. 250,) or that of freight reserved to the vendor of a vessel, for the voyage next after her sale. Riley v. Delafield, 7 Johns. Rep. 522. But see Sansom v. Ball, 4 Dall. 459, where this point is not made.

       In the case put, the bottoming would be to protect the property, assured, in which the underwriter had an interest. The bottomry in the principal case prevented his interest from arising.

   Thompson, J.,

delivered the opinion of the court. Several of the questions raised in this cause have already been disposed of in the preceding case, against the same defendant, upon the cargo of the same vessel. The circumstances relative to the blockade of Cadiz, and the detention in consequence of the fever that broke out at Cadiz, shortly after the arrival of the vessel there, are necessarily the same. It having been decided that Cadiz could not be considered a blockaded port, there could be no objection against this vessel’s putting in there, pursuant to the permission given in the policy. It is manifest, from' the whole current of the testimony, that there existed a pretty strong necessity to put into Cadiz for the purpose of repairs, and that this was the sole object, and not for the purpose of trade. The captain appears to have acted with as much de-spatch in procuring the repairs *to be made, as the state of things at Cadiz would warrant, to have been anxious to pursue the voyage to Algiers, and did everything in his power to accomplish it, until misfortune after misfortune had so increased his expenses that he found it impossible, from the want of funds, to proceed. Thus far the facts in these cases are the same as in the case on the cargo.

But in the case on the ship it appears that, before and after the time the plaintiff purchased her, she was under a bottomry bond for upwards of 6,000 dollars, given by Cas-simir Delavigne, the former owner, of which the plaintiff was wholly ignorant. That while she lay at Cadiz, after «ill her repairs were made, though not until the plaintiff found that it was no longer in his power to proceed on the voyage to Algiers for want of funds, and had determined to abandon it, proceedings were instituted against the vessel under this bond, in consequence of which she was seized and sold by order of the Royal Consulado at public auction for 88,500 reals vellón, (about 1,925 dollars,) which sum, after deducting the charges, was paid to the holder ol the bottomry. A question then arises here, whether the plaintiff had an insurable interest in this vessel, she being under a bottomry bond to more than the amount of her value in the policy. The assured had, we think, an insurable interest in the subject. He, having possession and the right of redemption, must be considered the owner for the purpose of insurance.

The hypothecation does not transfer the property of the ship, but only gives the creditor a privilege or claim upon it to be carried into effect by legal process. Abbott, 117. The owner of a ship who has mortgaged her, and who is also master of her, cannot, while he is possessed of the equity of redemption, commit barratry; because he is still considered as the owner, notwithstanding the mortgage, and so cannot commit a fraud against himself. Lewin v. Suaso, in chancery, Marsh. 452. The doctrine, that the person having the possession and holding the equity of redemption, has an insurable interest, is strengthened by the decision of this court in January term, 1801, in the case of Robertson, that the person holding the bottomry *bond has not an insurable interest, without there is a special clause inserted in the policy, designating the particular interest insured. There is nothing, we think, in the conduct of the plaintiflj showing want of good faith; all the witnesses concur in representing that he was extremely solicitous to pursue the voyage to Algiers, but that he was obliged to abandon it for want of funds. This was on the argument admitted by the defendants counsel to be, as a general principle, sufficient cause for abandonment, and breaking up the voyage. We see nothing in this case to take it out of the general rule. The difficulty and embarrassment which the plaintiff met with in raising funds, were not occasioned by the bottomry bond. No claim was made on this vessel by virtue of that bond, until after the captain had determined to abandon the voyage. The next question, then, will be as to the amount of the loss of the ship. The underwriter, ■ we think, clearly ought not to suffer in consequence of the encumbrance on the ship by the bottomry bond ; this is a loss that must be sustained by the plaintiff; or, for which he must look to the - person from whom he purchased the vessel.

In ordinary cases, immediately on the abandonment, the subject insured would become the property of the underwriter, and he would be entitled to receive its full value. If, then, the underwriter has been deprived of this property in consequence of a lien or encumbrance for which he is not answerable, the assured must put him in the same situation he would have been in, had no such lien existed; that is, in the present case, by deducting the value of the vessel at the time of abandonment, from the amount of the insurance. And we know of no better rule by which to ascertain that value, than by the sale, provided there was no fraud or collusion. Had not the ship been seized under this' bottomry bond, the captain would have been obliged to sell her, as the voyage must have been broken up ;■ the sale would have been at the same place, and under equally unfavorable circumstances. We can discover no fraud or unfair conduct in the transaction. She was sold at public auction under the direction of a public officer, and we think the price for which she was sold, must, prima fade, be considered her true value, and *this being less than one half her true value, there was, of .course, a total loss. We are therefore of opinion the verdict was against the evidence, and that a new trial be granted on payment of costs. With respect to the case on the freight, we are satisfied with the verdict of the jury, that there was a pro rata freight earned, to wit, four fifths of the whole, imounting to 2,400 dollars. The owner of the vessel was also master, and pan owner of the goods. We take it to be a rule well settled, that where a ship by reason of any disaster, goes into a port shore of the place of destination, and is unable to prosecute and complete the voyage, and the goods are there received by the owner, freight must be paid according to the proportion of the voyage performed. This rule is certainly founded in justice and equity, and ought to receive a liberal application. The master here, acting in the double capacity of captain of the vessel and owner of the cargo, interfered, and disposed of the goods, and although, perhaps, it may be difficult to say whether in such a disposition he acted in his capacity of owner or master, yet, we think, prima facie, he ought to be considered as acting in that capacity which leads to the most equitable result, and best answers the end of justice.

The circumstances under which the cargo was received and disposed of by the plaintiff, were submitted to the jury, who, by their decision, must have considered him in that transaction, as acting in his capacity of owner; and in doubtful cases where the justice of the case is with the verdict, we think the court ought not to interfere and set it aside. The opinion of the court, therefore, is, that the plaintiff take nothing by his motion.

Livingston, J.

Judgment was given in favor of the plaintiff- on two other policies on this voyage; the one on ship, and the other on cargo. I concur in all the points determined, except as to the effect of the bottomry on the insurance, and in conclusion that the voyage was finally defeated from a want of funds. Here, also, I agree in the opinion just delivered, that a pro rata freight was earned as far as Cadiz, and that if the plaintiff be entitled to recover at all, the verdict is right; but I cannot think the defendants are liable for any thing on this policy.

*It is essential to the validity of every contract of this kind, that an account be given to the underwriters of every mateial fact, which enhances the risk. This account, in other words, should be exact and complete, because the insurer computes his risk by it. If, therefore, any circumstrance be suppressed or concealed, which the insured knows to exist; and which, if disclosed, would entitle the other party to demand a higher prenium, the contract is void; for every intentional concealment of circumstances which vary the risk, is regarded as a fraud. But it is not only a fraudulent concealment or misrepresentation that will vacate a policy. If a representation be mabe from oversight, or with the utmost good faith, and without any design to impose, still, if it be of a material fact, and not true, there is an end to the policy. There is no reason why the same rule should not apply to an unintentional concealment; nor ought it to form any excuse that the assured knew nothing of the fact concealed. He is supposed and ought to know every thing material that relates to the subject of insurance, and is presumed to be in a situation to lay before the underwriters every matter necessary to form a just estimate of the risk he is about to assume. The property is his, and by a moderate degree of attention he might obtain every necessary information respecting it. If he does not, he must be deemed guilty of. negligence, for which he alone ought to suffer. If neither of the parties know of a circumstance which subsequent events have discovered to be important, the contract is founded in mutual error, in which case the parties cannot be said to have assented to it. If the assured had known the circumstances, he would not have effected an insurance at all; or would have disclosed it to the underwriters, who would have declined the risk altogether, or have asked an increase of premium. These principles accord with those which are laid down and illustrated by Mr. Millar, in his Law of insurance. “ Every instance of misrepresentation and concealment,” says this learned author, “ however unintentional, if it varies the risk under-talcen, in the minutes particular, from that understood, destroys the consent of parties, and annuls the contract.” “It implies not only mistake, *butmistake founded in fault.” “ Guipa lata," say “ equibartur dolo." Page 49.

It remains to show the application of these principles to the present case I am now considering. "Whether, in virtue of the abandoment at Cadiz, the plaintiffs be entitled to call on the defendants for payment of their subscription to the policy, inasmuch as she was, within ten days thereafter, and before the defendant could by any possibility have heard of the abandonment, seized to satisfy a bot-tomry bill of which they knew nothing ?

The insured, before an indemnity can be demanded of an underwriter for a technical total loss, must abanden or cede to him all the property that may be recovered from shipwreck, or any other peril enumerated in the policy. In virtue of this abandonment, the underwriter is entitled to the property saved, and to dispose of it as he may think proper. But if the property thus ceded be withheld from any other cause than from one of the perils insured against; or if he cannot obtain possession for any other reason than on account of such peril, he ought not to be held to pay for the loss. It is certainly part of the contract, that in case of abandonment, the assurer shall have the property saved so far as his insurance extends; and if this right be defeated by any act of the assured, or by any circumstance not within the perils insured against, and not known to the underwriter, he cannot, without manifest injustice, be chargeable. In this case the property was kept from the defendants, and the object of the abandonment thus defeated, not by any accident within the policy, but by enforcing a mortgage which existed long before tho insurance was effected. It cannot be pretended that the defendants assumed this risk, nor that they would, but for a very large premium, have exposed themselves to it. It is not enough that the plaintiff is willing to credit them with the proceeds of the sale under the sentence of the Spanish tribunal, which -were applied to extinguish the bond. It is the saie itself of which they complain. No one can say that a compulsory disposition, in a foreign port, of any American vessel, and that for cash, will fur' nish a fair criterion of her real value; nor is it probable that the defendants, is left at liberty, as they ought to have been, would have sold her *in a way, which could not but be attended with great sacrifice. They would probably have ordered her to this country, or pursued other measures to mate the most of the property. This reasoning may at first appear more applicable to an insurance on the' vessel, but I have not thought it necssary to make any distinction ; for, on the principles on which I proceed, if the voyage were impeded, or finally defeated, by occasion of the bottomry; the underwriters on freight ought to be more liable than those on the ship. But it is alleged, that it being determined to abandon the voyage previous to any proceeding on the bottomry, and the underwriters being fixed by such abandonment, it is of no importance what became .of the property afterwards. Without examining the effect of an abandonment of a voyage, thus declared abroad before a consul, and without any communication of it until long after to the underwriters, I think it has been already shown that even if the abandonment were good, yet if its object, as it regarded the defendants, were defeated by judicial process not grounded on any marine peril, there ought to be no recovery. The want of funds, I am satisfied, was a mere pretence to break up the voyage, before a seizure took place under the bottomry. It is incredible that in such a city as Cadiz, between which and New York there is a constant commercial intercourse, it should not be practicable to raise funds necessary to repair the Prosper; but if such difficulty existed, it may fairly be imputed to the owner’s inability to give an adequate security on the vessel in consequence of the antecedent hypothecation, and this furnishes another reason for not rendering the underwriters liable. But for this obstacle, no doubt, money would have been raised. My own belief is, and it is warranted by the whole course of the transaction, that no idea was entertained of abandoning the voyage to Algiers until after Williams discovered that the bottomry bill was in Cadiz; and that to avoid an arrest on that account, he contrived to put a period to the voyage, pretending that no funds were to be had to pay for or finish the repairs. How could this be possible? Mr. Terry, the American Consul, had already paid for all the repairs which had been put on previously to her being blown to sea; and it is very evident that when she was thus forced out of *the bay of Cadiz, she was preparing to go to A1 giers. The injury she sustained at this time was too trifling to cause any delay, and the repairs of the former injuries being paid, I regard as wholly fictitious the difficulty about funds. I neither believe it real, nor that it had any influence in terminating the voyage. My opinion therefore is, that a new trial be granted, not, however, because the damages are too small, but because the plaintiff is not entitled to recover any thing.

In the action on the ship new trial granted.

In that on the freight refused.

        Quern, whether some distinction is not to be taken between eases on bottomry bonds and those on bottomry bills ? In the first, the vessel is mortgaged and assigned to the lender; in tho latter, she is bound to the payment. And liere again a difference may arise between cases in England and cases here, on account of the wordings of the register acts of the two eountries.


author: Livingston, J.

text:
    Hendricks against Judah.
    If a house be taken for a year before an act of bankruptcy, and the bankrupt continue in possession afterwards, he is not discharged from the subsequent rent by his certificate.

    Action on the case, for the use and occupation of a house. One count was on a parol agreement by the defendant with the plaintiff, to take a house of him, which the defendant afterwards refused to occupy^ or pay the rent for. The other, money paid, laid out, and expended, to the.use of the defendant. A verdict having been rendered for the plaintiff, the question of his right to recover was reserved for the opinion of the court, on a case which was shortly this:
    The defendant applied to a Mrs. Bowne to rent him a house from the first of May, 1800, to the first of May, 1801. This she refused to do, but said that she would let it to the plaintiff, who might underlet it to the defendant. This was accordingly done. In September, 1800, the defendant became a bankrupt, and duly obtained his certificate, but the plaintiff never took the house off his hands, though it was for the most part unoccupied, and had, by the courtesy of the defendant, been in some degree occupied by the plaintiff, who paid to Mrs. Bowne the rent for the three quarters due after the bankruptcy. To recover this the present suit was instituted, and the sole question was, whether the bankruptcy in September, and certificate thereon, was a discharge from the subsequent rent ?

      Biggs, for the plaintiff.
    Under the circumstances of tms case, the plaintiff may perhaps be considered as a surety for-the defendant, paying the debt after the bankruptcy of the principal. In this point of view, the very cause of action would be subsequent. But taking it simply as a matter between landlord and tenant, it is a general proposition, that the latter does not become a debtor to the former, in a sense *that would make bankruptcy a discharge, until after the rent falls due. If it be quarterly, then at the expiration of each quarter ; if annually, then at the end of the year. This principle will be found in Cullen’s Bankrupt Law, 126, in Mills v. Auriol, 1 H. Black. 433, and Naish v. Tatloclc, 2 H. Black. 319. The tendency of the cases is to settle this point, as between landlord and tenant, because a demand for rent, which was not payable antecedent to a bankruptcy, cannot be proved under the commission. If, therefore, it cannot be proved, it cannot be barred, and the bankrupt continues liable notwithstanding his certificate, which has only a retrospective and not a prospective view. But there is a special count on a parol agreement to use, occupy, and pay, alleging damages by a breach in refusing; surely, a previous bankruptcy is not a bar to a recovery in an action sounding in damages to be subsequently assessed.

      Troitj?, contra.
    As the defendant rented from the plaintiff, it is a question merely between landlord and tenant. An underletting can never change the mesne tenant into a surety. It is settled, that to an action of debt on a lease, brought after a bankruptcy, for rent subsequently accrued, the certificate is a bar, nay, even if it be on the implied covenant in the reddendum.

       A distinction, however, has in the English books been taken, where the suit is on an express covenent to pay, in which case it is said the bankruptcy is not a discharge. 1 Saund. 241; 4 D. & EL 94; 1 H. Black. 483. The reasoning,'however, on which the fule is established in the first cases, would equally apply to the last, for the bankrupt is as much devested of the possession in this as in the others. The effect of the statute is compulsory upon him, and he is disabled by the act of the law: his immediate inability, therefore, ought alone to be looked at, and not the remote consequence of an agreement, made concerning land, of which he is devested. “ It were infinite,” says the quaint language of Lord Bacon. (Bac. Law Tracts, 35,) “ for the law to judge the causes of causes, and their impulses one of another, therefore it con-tenteth itself with the immediate causes, and judgeth of acts by that, without looking to any farther degree. If any annuity be granted, pro concilio impendendd, and the grantee commit treason, whereby he is imprisoned, so that the grantor *cannot have access to him for his counsel, nevertheless the annuity is not determined by this nonfeasance, yet it was the grantee’s own default to omit the treason, whereby the imprisonment grew; but the law looketh not so far, but excuseth him, because the not giving counsel was compulsory, and not voluntary, in regard to the imprisonment.” So here, the law has, against the consent and will of the defendant, deprived him of the means of performing his promise; and shall he be held to it, when the very consideration is taken out -of his hands ? In Mayor v. Stewart, Yates, J., says, “ As the act devests him of his whole estate, and renders him absolutely incapable of performing his' covenant, it would be a hardship upon him, if he should remain still liable to it, when he is disabled by the act of parliament from performance.” By act of law, the very consideration is taken away, and, therefore, for want of one, the action is not maintainable. As to its sounding in damages, so does a suit on a promissory note, and yet it is discharged by a certificate: for the debt upon it might be proved, and why not this; as it was a demand growing before the commission, a plain debitum in presentí solvendum in futuro.

      Higgs, in reply.
    The continued use and occupation, after the bankruptcy, creates the consideration for the rent demanded. The cases cited proceed on this ground; if the assignees take possession under a lease, the bankrupt is exonerated, because.they are liable; but if they do not, then he continues responsible; and even if they do, he is not discharged from an express covenant, because bankruptcy does not dissolve tide contract. But here the contract exists,

       and the defendant has had a full consideration by enjoying under it.

       Where the cause of action entirely arises after an act of bankruptcy, a certificate is not a bar. Therefore, the certificate of a bankrupt endorser on a bill or note is not a bar to an action by hia endorsee who has taken up the security subsequently to the act on which the commission issued. See Bamford v. Burrell, 2 Bos. & Pull. 1. So the discharge of an insolvent does not exonerate from the demand of his bail, who were fixed previously to its heing obtained, and pay the money afterward. Buel v. Gordon, A Johns, Rep. 126. On the same principles demands by obligees, on bonds conditioned to save harmless, if damnified, may be enforced notwithstanding a certificate posterior to their date, if the contingency of injury do not arise, till after the act of bankruptcy; aliter, when the bond is to pay absolutely on a certain day, or is previously forfeited. Toussaint v. Martinant, 2 D. 4 E. 100; Martin v. Court, ib. 640; Hodgson v. Bell, 7 D. & E. 97. So under our insolvent law, though the forfeiture be merely that of not procuring a conveyance of a certain specific number of acres of land, for which the obligor had received payment. Clinton & Norton v. Hart, 1 Johns. Rep. 376. It has by a late decision been'ruled, that a certificate of a bankrupt does not. discharge from a judgment subsequently entered on a cognovit given before the certificate, the cognovit being, as it is said, a mere acknowledgment of damages. Wyborne v. Ross, 2 Taun. 68. Aliter, where the judgment is before the discharge, though the costs be. taxed afterwards, and arise on a judgment of non pros. Hurst v. Mead, 5 D. & E. 365. The principle of the last decision governs in cases under our insolvent law, a discharge according to which will exonerate from costs subsequently ascertained, on a judgment previously rendered; (Warne v. Constant, 5 Johns. Rep. 135,) though it bo only on a non oros. Thomas v. Striker, ib. 136 n,(a); but see the next noto and eases there.

       This position, though generally laid down, is not strictly correct. It seems that there are circumstances under which a demand will bo barred by a certificate, though the amount cannot be proved. Thus, if there be, a mere canse of action antecedent to the act of bankruptcy, for which a suit- is previously instituted, the verdict subsequently obtained, witli the costs, will be Darred, but the costs themselves cannot be proved. Ex parte Hill, 11 Ves jun. 646. Whether in such a case the verdict which was prior to the bank ruptcy be, by a judgment posteriorly entered up, rendered a provable debt, is, perhaps, rather doubtful. See Ex parte Charles, 14 East, 197, and Willet v. Pringle, 2 N. R. 130, where, as well as in Ex parte Hill, the old cases on this point are examined.

       That is, because it is payable out of the land, and not on account of it The action is founded not merely on the terms of the demise, but on the enjoyment of the tenant. Co. Litt. 142, a. and Lord Mansfield in Wadkam v Marlowe.

       Therefore if an annuity be granted by deed in which there is a covenant to pay as it becomes due, and the annuity be also secured by a bond, an action may be maintained on the covenant, for arrears accrued subsequent to the bankruptcy, though the bond was forfeited before. Cotterell v. Hooke, Doug. 97. Dor a statute which vests the estates of debtors in assignees, does not discharge the debtor from an express covenant, which is collateral to the land. Hornby v. Houlditch, And. 40; Lansing v. Pendergrast, 9 Johns. Rep. 127.

         Therefore assumpsit will lie against a bankrupt lessee from year to year upon his agreement to pay rent during the tenancy, notwithstanding the occupation by his assignees for part of the time during which the rent accrued. Boot v. Wilson, 8 East, 311. But debt will not He on the redden-dum of a lease for rent accruing after the commissioners’ assignment, the consent of the lessor to it being virtually included in the act of parliament. Wadham v. Marlowe, 8 Bast, 314, n.

   Livingston, J.

delivered the opinion of the court. The only ground on which a certificated bankrupt can expect to be exonerated from a demand of this kind, is the hardship of continuing liable after a surrender of all his estate, and among the rest, this very property, to assignees for the benefit of all lfis creditors ; but is this the fact ? It: does not appear by the case. We well know that a house of this kind, on so short a lease, is not worth more than the rent reserved, and (notwithstanding the generality of the assignment) is not taken possession of by the *assignees. It continues in the bankrupt’s occupation, and if so, as we must presume was the case here, such being the usual course of things, and the contrary not being found, upon what pretence can he ask an exemption from this suit ? He, and not his creditors, have derived a benefit from this property since his bankruptcy. Therefore he, and not the estate asssigned, should be burdened with the rent. Qui sentít commodum, sentiré débet el onus.

It may be subjoined that the debt being contingent, for n case of eviction nothing would have been due, proof of it would not have been admitted under the commission, and, therefore, unless there remain a liability in the defendant, the plaintiff will be without remedy. Culllen’s Bank. Law, 84—126, 3 D. & E. 544. We mean, however, to be understood as determining this cause more particularly on the ground of the defendant’s occupying the premises after his discharge, than on any other, and of the tot.al want of proof that the assignees ever took possession of them. Judgment must be entered on the verdict, as found by the jury. See Van Raugh v. Van Arsdaln, 3 Caines’ Rep. 154, n.(a)

Postea to the plaintiff.

       In which case they are not liable for the rent accruing subsequently to the bankruptcy. Bourdillon v. Dalton and others, 1 Esp. Rep. 233.

       A discharge under the insolvent act is no bar to an action on an express covenant to pay rent, brought to recover rent accruing subsequent to the insolvent’s discharge. 9 J. R. 121. And, generally, if the creditor, at the time of the assignment by the insolvent debtor, has not a certain debt due or owing, (although it may not be then payable,) so as to entitle him to a dividend of the insolvent's effects, he will not be barred by the discharge. Mechanics' and Farmers' Bank v. Capron, 15 J. R. 461; Frost v. Carter, 1 Johns. Cas. 13; Buel v. Gordon, 6 J. R. 126; Andrews v. Waring, 20 id. 153. But now the discharge exonerates from liability- incurred by making or endorsing any promissory note or bill of exchange, or in consequence oi the payment, by any party thereto, of the money secured thereby. Seo 2 Rev. P«at. p. 22, § 31.


author: Per Ouriam.

text:
    Livingston against The Columbian Insurance Company.
    A struck jury will not be granted without affidavit, though the opposite side make no objection, and acknowledge service of notice of the motion.
    Bogeet, in behalf of the defendants, moved for a struck jury in this cause, on an acknowledgment from the attoi ney of the plaintiff of service of notice of the motion, hut this was not accompanied with any affidavit of the importance or intricacy of the cause.
   Per Ouriam.

The court ought to be satisfied that the cause is either intricate or important, (vide ante, vol. 1, p. 498; Spencer v. Sampson, Foot v. Croswell,) and that by affidavit.

1ST. B. The court seemed inclined against the granting of struck juries, as a matter of course, on a mere formal affidavit.


author: Per Curiam.

text:
    Strong and others against Smith.
    If a defendant, before a justice, rely, in an action of trespass, on his title, he confesses the trespass, and cannot, on moving the cause into this court, plead the general issue.
    This was an action of trespass commenced before a justice of the peace in the county of Suffolk, under the “ Act for the more speedy recovery of debts to the value of twenty-five dollars.” 1 Rev. Laws, 491. The defendant justified under a plea of title. Upon this, proceedings' were stayed before the justice pursuant to the tenth section of the act, (Ibid. 494;) and *the action prosecuted before the court of common pleas; from thence the defendant removed it by habeas corpus into this court, where he pleaded, 1st. The general issue; 2d. That the closes mentioned in the declaration, were the freehold of the trustees of the freeholders and commonalty of the town óf Huntington, and that by their command and direction, he entered; 3d. That the trustees of the freeholders of the town of Huntington were seised of the premises, and granted him a lease for a year, by virtue of which he entered and was possessed until the plaintiffs, by color of title, turned him out, on Ivhorii he again entered, arid committed the trespasses complained of.
    A suggestion of these circumstances, according to an in-tiination on a former day given by the court, having been entered on the-record, an -application was now made to ofuripel the defendant to strike Out his plea of the general issue, and rely on his title only.

      Higgs, for the plaintiff
    The justification by way of title is ‘an admission of the trespass. It is only on the strength of this admission that the defendant has been able to take the-cause from the jurisdiction before which it was originally brought. He can never, therefore be r.ow permitted to contradict what he has thus conceded.

      Sanford, contra.
    The tenth section confines the reliance on title alone to the common pleas. There is not a word of this court; when, therefore, the suit is removed here, it is to be prosecuted according to the. rules and practice of the tribunal before which it is brought, in the same manner as any other action originating here.

      Biggs, in reply.
    The intent of the statute was to confine actions for trifling damages to the inferior court; in the common pleas, the production of the defendant's plea countersigned by the justice, would have been conclusive against the general issue. The same reason applies now. Under the statute the defendant has a right to elect, either to rest on his innocence, or insist on his title. Having made his election, he cannot vary the right given by this election to the plaintiff of considering the trespass admitted. The delay alone is against it. A witness may die. But we ground ourselves on the spirit and object of the act.
   Per Curiam.

The construction of the act no doubt is, that when a defendant, sued for a trespass before a justice, relies *on his title, he admits the trespass. But lest the title should be in a third person, the act gives him a right to show that also. Either one of the other acknowledges the trespass To this, as the whole matter appears on the record, it would not be permitted the defendant on the trial at nisijprius to say the contrary, nor would the plaintiff be called on to prove the trespass done. The general issue, then, is perfectly nugatory, and must be struck out, but not with costs.

Spencer, J. dissentient.

Motion granted without costs.

      1] See to the same effect, Brotherton v. Wright, 15 Wend. 237; Marsh v. Berry, 7 Cow. 344. But now, by section 65 of the Code of P., the defendant, in a justice’s court may, either with or without other matter of defence, set forth in his answer any matter showing that such title will come in question.


author: Per Quriam.

text:
    Roosevelt against Kemper.
    Affidavit of merits sufficient to set aside an inquest taken at the circuit, and with costs.
    The plaintiff had in this cause taken an inquest at the fast circuit, the judge laying it down as a general rulé, that any party might take an inquest, but at his peril.

      Harison moved to set aside the inquest ou a simple affidavit pf merits.
   Per Quriam.

"Whenever an inquest is taken, it is at the risk of the plaintiff; and on such an affidavit as the present must be. set aside with costs.

N. B. The court seemed to intimate that counter depositions of a want of merits could not be received, as it would be trying a cause on affidavits.

       But for the present practice, see I2tk General Rule ol S. Court.


author: Spencer, J.

text:
    Gracie against Bowne.
    In a policy effected in New York upon goods at twelve cents per pound, the weight will be determined' by the English standard, though the invoice specify the weight to be Erench.
    This was an action on a policy of insurance on coffee, part of the cargo of the ship Arethusa, from Jeremie, in the West Indies, to Baltimore, or Hew York, valued at 20 cents per pound.
    By the bill of lading the coffee was to be delivered at Baltimore, paying two cents per pound freight, a note in the margin, declaring “ that the freight was to be calculated, and paid on the “ weight of the custom-house, at Baltimore.”
    The only matter in contest at the trial was, whether the coffee being estimated at twenty-five cents per pound, in the policy, the loss should be calculated on the English or Erench weight.
    It appeared in evidence, that the standard difference between English and Erench weight is eight per cent., 108 pounds English making 100 pounds Erench.
    That in Baltimore, it is the established custom, in cases *of valued policies on goods by weight, to bring the foreign into English, by adding or. subtracting from it, according to the standard; it being always understood, unless the contrary is expressed, that the English weight is the quantity actually insured; to bring French into which, eight per cent, is there added to the French. That in the city of blew York there is no such usage. That in paying the freight, where the contract is for so much per cent, the New York merchants are governed by the actual weight there, without regard to the foreign weight, expressed either in the bill of lading or invoice. That in truth, the difference between French and English weight, varies from one to eight per cent, according as the shipment is from different houses, but that the medium is five per cent.
    On these facts a verdict for the plaintiff was taken by consent for 1,187 dollars and fifty cents, to stand, if the opinion of the court should be, that the standard difference between French and English weight was to be the rule oi calculation : to be reduced, however, to 589 dollars and 80 cents, if the medium difference was to govern; and, should they determine that the French weight ought to prevail, then to be entered for 259 dollars and 8 cents.

      Hamilton and Hoffman, for the plaintiff.
    All contracts are to be expounded according to the interpretation the words will bear in the country where entered into. Thi3 is a valued insurance, and the valuation for no other reason than to prevent all reference to the invoice, which an open .policy might induce. In contracts for freight, the American acceptation of pound is resorted to. So it must be here, and the standard difference ought to govern, because it is the more certain and uniform. Otherwise there will be one rule for estimating against underwriters a claim for a loss, and another against the underwritten for a demand due on the freight. In Baltimore, our principle is allowed, and, to exclude it, the insurer ought to show a contrary üságé.

      Harison. and Pendleton, contra.
    A contract is not always to be interpreted according to the language of the lex loci It may, as here, refer to other countries. The policy attached in a foreign port, and supposing a total loss the invoice must have been referred to. It is only in case of arrival, that the weight can be ascertained here without *such a resort, and the very nature of insurance is against the contemplation of safety. The bill of lading is a strong argument for rejecting the standard difference. When that is to govern, it is expressed ; ergo,when not so specified, the French is to regulate; more particularly so, as the bill of lading is framed with a view to safe arrival, contrary to the motives of insurance. If, however, any reference is to be made to.the.English weight, the medium difference ought certainly to prevail, as being more consonant to equitable justice, and equally certain, for the jury have settled it at five per cent.

      Hamilton, in reply.
    When a contract made in one country is to be executed abroad, then the foreign parts are adverted to; but though the subject be abroad, if it be to be carried into effect where made, the lex loci contractus, the law of the place, is to govern. The word cents is used in the policy: this proves it was to be confided to this spot, and the pounds like the money, referible to the United States. The policy, too, was underwritten without information of the invoice; it must, therefore, be thrown out of the question, as the insurance can be interpreted only according to the knowledge of the parties, which never éxtended to the wording a paper'made in Jeremie.
   Spencer, J.

delivered the opinion of the court. The only question arising in this cause is, whether the weight of the articles insured is to be considered French or American ?

The difference between them as stated, and admitted by the case, is agreeable to the standard, eight per cent, that is to say, eight per cent, is added to the American, on the French weight, to ascertain the weight according to our standard.

In the construction of policies of insurance, the intention of the parties is to be sought from the circumstances attending the transaction, and the usage of the trade.

This policy was subscribed in New York, and it appears to us that the parties could have had reference to no other weight than that of the country where the insurance was effected. If other circumstances were wanted to manifest such intention, they might be found in the use of the currency of this country in making the valuation. In contracts here, referring to weight or currency generally, it appears *to us, that to intend any other than those in use here would be doing violence to the intention of parties.

It is stated in the case, that in paying freight, where the contract is to pay so much per lb., it is the usage in the city of New York to be governed by the actual weight, without' regard to the foreign weight expressed in the bill of lading, but in cases like the present, there is no usage in New York.

We think the usage, and the reason of it, as respects freight, applicable to the present case.

In Baltimore it is stated that there is a usage in cases like the present, and that there the weight is ascertained by adding eight per cent, to the French.

On the argument it was contended, for the defendants, that in consequence of prior insurances, the plaintiff was not entitled to recover beyond the premium; it was answered that the object of the plaintiff was to cover th« profits on the cargo.

The agreement of the parties to the case before the court, supersedes the necessity of any examination of this point.

It is expressly agreed, that if the court should be of opinion that the difference between French and English weight, as established by the legal standard, shall be the rule or guide, then the verdict to stand.

We are therefore of opinion, that in judgment of law, the parties intended the American weight; and, that in ascertaining that, the standard difference eight per cent, ought to be added to the weight in the bill of lading, and that the plaintiff is entitled to his judgment accordingly.

Judgment for the plaintiff according to the standard difference.