author: Livingston', J. Kent, Oh. J. Thompson, «T.

text:
    Lawrence against Sebor.
    If the acting partner in a concern of two, causo an insurance to be effected for the amount of his own share, and the policy state it to be on his account, but retain the general printed words of “ whomsoever else it may concern,” the insurance will be held to have been made on the joint account, if sucii appear to have been the intention of the assured, and to gather this intention, the letters of the assured maybe resorted to, though they were never shown to the underwriter, who subscribed upon seeing instructions to insure only on the separate account of the acting partner. Under such circumstances, if the policy be for half the cargo, and on capture half be condemned, and half be acquitted, the assured can recover only a moiety of the sum insured.
    This was an action on a policy of insurance for 5,000 dollars, on the cargo of the sloop Hope, at and from Gua-dal oupe to Mew York, for account of Richard M, Lawrence. Premium 3 1-2 per cent. The declaration, besides other counts, contained one averring the insurance to have been for account of the plaintiff; another averring it for account of the plaintiff and one Thomas T. Gault.
    The facts, as agreed to in the case made, were these: The plaintiff residing in Guadaloupe, and Gault in St. Kitts, though' not general partners in trade, were jointly interested in the cargo of the Hope. On the 23d of June, Lawrence wrote to Lawrence & Whitney, his correspondents in Mew York, directing insurance for the sum in the policy, but not specifying on whose particular account. The letter, however, stated that the plaintiff had given to Gault an order for the net proceeds of the sloop’s outward cargo, and that he had drawn a bill on them for 3,000 dollars, which was to be charged to the shipment. But this letter was never shown nor communicated to the underwriters or insurance brokers, and the policy was effected on the following written order delivered to Hoyt & Tom. “Will you effect insurance on 5,000 dollars, cargo of the sloop Hope, from Guadaloupe to this port. She was to sail on or about the third of July. For account of Richard M. Lawrence, premium not to exceed 3 and 1-2 per cent.” On the voyage the vessel was captured and carried into Mountserrat, where, on the 28th of July, 1801, ^'Lawrence & Gault interposed a claim for the cargo, but, by the sentence, the portion of Gault was acquitted, and that of Lawrence condemned, with costs against both. Among the admiralty papers was a letter from the plaintiff ordering an additional insurance for 4,500 dollars on the cargo of the Hope; though knowledge of this never came to the underwriters or the brokers Hoyt & Tom.
    On the 18th February, 1802, the abandonment was made.
    At the trial of the cause a verdict was taken for the plaintiff, subject to the opinion of the court, whether the plaintiff could recover for a total, or a partial loss ? or, whether he could recover at all ?
    On the part of the plaintiff it was insisted, that the in surance ensured to his own separate benefit.

      Harison, for the plaintiff.
    Lawrence & Gault, as partners, were tenants in common ; each possessing an undivided half of the general property. That the individual part of the plaintiff was intended to be protected by the insurance is plain. Of his interest only was the .underwriter apprised; his name was inserted in the policy, and it is a settled rule that the written part of the instrument shall control the general words which are used. It can never be insisted that the letters of the plaintiff to his correspondents can influence the decision of this case. They were not communicated to the insurers. All that was disclosed was the order, and the only question is, whether the plaintiff had an insurable interest to the amount in the policy. There is nothing in the nature of joint property which prevents an exclusive insurance of one undivided moiety. Under the contract now before the court, Gault could not have recovered, had the vessel been carried into a French port, and his share condemned in a French tribunal. In Page v. Fry, 2 Bos. & Pull. 240, it was held that an averment of the plaintiff’s being interested to the whole amount of the cargo insured, was supported by evidence showing he had some interest, though, previous to effecting the policy, he had sold the major part to another person. Surely, then, an averment of the insurance being on account of the plaintiff, is maintained by showing an undivided interest to the amount insured. Nothing can be urged against the abandonment. While the loss continues total, it. is never too late to abandon and recover for the whole. Guerlain v. Shaw, in the case of the Grand Turk.

      Pendleton, contra.
    The policy extends to a cargo, the interests *in which are joint in every part. Had half been saved from shipwreck, a moiety would have belonged to Gault. As half is acquitted, a moiety belongs to him; and the underwriter is entitled to the advantage of this, in the nature of salvage. Otherwise a-policy on half would, in a case like this, cover and secure the whole ; for, as half is restored, if half be also recovered, partners residing as these do are always wholly safe by insuring only a moiety. The letters prove the joint property was intended to be covered.. An abandonment, to entitle to a total loss, must be made in the first instance. Park, 172, 181, 182.

      Harison, in reply.
    The principle of the English authorities is, that if, after lying by, the loss is changed-to a partial or average loss, you shall not, by abandoning, set up a claim for a total loss; but this is inapplicable when the loss continues total; you must, in such a case, recover for a total loss, or you cannot recover anything. But whatever the British decisions may be, ours have settled the law in a different manner. The interest to be. covered by this policy can be only that which the underwriter and underwritten contémplated. That only was the subject of contract. What, therefore, was contained in letters between the plaintiff and his correspondent, o‘r how that interest is to be settled in account with Gault, is immaterial. Whát was the intent of the parties to the contract, as it appears from the written instructions? That, and that alone, is to govern.

       Where the policy does contain the general words “whomsoever else, r.c., if the interest of the assured named, be only a several proportion of an undivided whole, and he have not authority to insure all, he will be entitled to recover to the full extent of the policy, if his interest warrant it. Lawrence & Whitney v. Vanhorn & Clarkson, 1 Caines’ Rep. 276. So where the policy is in favor of a citizen or subject to whom the whole cargo belongs, unde* the general words, the subsequently acquired interest of a fellow citizen or subject will be protected. Perchard v. Whitmore, 2 Bos. & Pull. 155, n, (a.)
        Page v. Fry, ibid. 240. But where the instrument does not contain the above general words, it does not cover the interest of a joint owner not named. Graves & Barnewall v. Boston Mar. Ins. Co., 2 Cranch, 419. Even a valued policy effected in the name of one partner only, does not extend to his associate, and if to the amount of the interest of the partner mentioned be underwritten by one underwriter, and the residue of the value specified by another, the policy is void as to the surplus beyond the interest of the assured who is named. Dumas v. Jones, 4 Tyng, 647. The report of which does not state whether the general words were retained in tne policy or not^ though it is probable they were not.

   Livingston', J.

This is ah attempt to recover as for a total loss, under a pretence that the assurance was effected for the plaintiff’s separate interest, and was intended t<B cover nothing more than his proportion of the joint prop-perty. There can be no doubt that such an insurance may be made, and then, as in the case of Lawrence & Whitney v. Vanhorn & Clarkson, (Vol. 1. p. 276,) the partner, who thus insures his particular interest, will be permitted to recover accordingly; but there it appeared that- Lawrence & Whitney had no right to insure for-the other parties concerned in the voyage, and that it was well understood that the policy was to extend to their share only. But every thing forbids such a conclusion here. The plaintiff was at. Gaudaloupe, and to him was committed the entire management of the voyage. He made-the purchases; he loaded the vessel. To him it was left, and thence it became his duty to make insurances. The shipment was made on the joint account (and so expressed in *-the bills of lading and invoices) of him and Gault, and amounted, with charges, to 9,922 dollars. On the 23rd of June, 1801, the plaintiff directs-his agents iu Hew-York to make insurance for 5,000 dollars. In this letter he speaks of Gault, and of his loading the sloop Hope on their joint account; and there is nothing in it from which it can be inferred that he intended to confine the insurance to his own proportion of the adventure. Five days after the plaintiff writes another letter, directing an additional insurance to be made on the same shipment, for 4,500 dollars, which would have covered all the property on board. After this, no doubt can be harbored of the plaintiff’s intention. But it is said that these letters, not being commu-, nicated to the underwriters, ought not to be received to explain the meaning of the parties. This may generally be right; but if any doubt arise on the written contract, I think the acts of the assured, although not known to the assurers, may be examined to show that his intentions were different from what afterwards he pretends was the case. If he had designed to restrain .the insurance to his interest in the cargo, it was easy to have used apt words for that purpose. If this had not been doue, and there be any corn troversy as to its extent, and this has been occasioned by what may be deemed a neglect in the plaintiff himself, his acts, however desirous he may be to keep them from our view, must surely be good evidence, if they militate against the construction he now sets up, or if they have a tendency to show that it is foreign from what he intended at the time, and contrary to his own written instructions. But there is no necessity to travel out of the contract, which is always dangerous, to ascertain the meaning of the parties to it. The insurance is not only for Lawrence, but for “ every other person to whom the property doth, may, or shall appertain, in part or in whole.” After this we must do violence to the plain import of these terms, to confine this indemnity to the goods of Lawrence alone, or to the amount of his interest in the joint property. This is the usual way of making insurances on a joint interest for a particular voyage, where no general partnership exists. One of the concern is intrusted with the conduct of the voyage, and in making insurance. Ordinarily he discloses his own name only, but under such contract the other partners will be permitted to recover for a loss of their interest also. The words for account of Richard M. Lawrence,” being in writing, is of no moment, for as they do not contradict, there is no reason*wby they should control, the printed clauses of the instrument. It may be be subjoined, that no one can doubt the plaintiff may charge Gault with his proportion of the premium of insurance, and that the latter may compel him to carry to his credit whatever is recovered in this suit. If so, it is another reason for regarding this, as it was most certainly intended to be, an insurance of the joint property. The French law has been referred to as settling this, point in favor of the plaintiff; but on looking into Emerigon and Yalin, we shall find them at variance. The former being of opinion that an assurance by one partner, without a specification of the interest he means to cover, is valid, only for his proportion of the adventure, while Yalin, however, with several writers cited bj him, consider it as extending to the whole cargo ; quia id quod commune esi, nostrum esse dicitur. This is especially so, says Yalin, if the insurance be made by the chef de la societe, or acting partner, as was the case here. It should be observed also, that Emerigon, in giving his opinion on a question which he admits to have been much agitated, makes use of .expressions not only very guarded, but which cannot be applied to the present policy. If partnership effects are loaded, says he, for my account and that of others, an insurance which is made for my sole account, (pour mon compte seule,) will only protect my interest, because nothing more has been covered. 1 Emer. 294; 2 Yal. 34. But is that the case here ? When the policy is as general as our language can make it, shall we call it an insurance “on the sole account” of Lawrence? Emerigon also admits that a judgment has been rendered in Erance, contrary to the opinion he entertains. Something was said of a misrepresentation as to the time of the vessel’s sailing, but this objection was abandoned on the argument.

As to the lateness of the abandonment., this is a point I consider as settled by this court, in the case of Earle v. Shaw. It was there determined, that an abandonment, is never too late, provided the loss continue total to the time of making it.

Being, then, well satisfied that the plaintiff meant to insure the property of Gault as well as his own, and that the terms of the policy comport with this intention, he can recover a partial loss only. Judgment must therefore be entered for 366 dollars and 60 cents.

SpenceR and Tompkins, Justices, concurred,

Kent, Oh. J.

Upon this case, the question is, whether the plaintiff shall recover the moiety of the sum insured, or the "'whole ? There is no dispute but that the plaintiff’s individual interest was sufficient to cover the whole policy.

The time of abandonment is not material, since, if the amount insured is to enure to the plaintiff, the loss remained total when the abandonment was made. This court has repeatedly decided that abandonment is not essential to enable the insured to recover a total loss, if the loss be actually total, and continue so to the bringing of the suit. Earle v. Lefferts; Earle v. Shaw, April, 1800; Roget v. Thurston, April, 1801; Page v. Fry, 2 Bos. & Pul. 240; 1 Caines’ Rep. 284.

There can be no doubt, also, but that a partner has such an interest in the entirety of the cargo as to enable him separately to insure it; and that an averment that he had an interest in the property to the amount of the insurance is.supported by proof of a partnership interest in him to that amount.

The important inquiry in the case is, what was the intent of the parties in the present case ? /Was the insurance intended for the separate interest of the plaintiff, or for the joint interest of him and Gault ? if the latter, then it appears that only a moiety of the sum insured has been lost.

It does not appear that the plaintiff and Gault were general partners in-business. It is rather to be intended from the case, that they were partners only in the particular shipment in question; and, although the printed part of the policy be in the usual form, yet. the order to insure was for the account of the plaintiff, and the blank in the policy was filled up accordingly for account of the plaintiff; no other communication was made to the defendant but the order. I am therefore of opinion, arising from these material features in the case, that the evidence resulting from the contract itself must decide the question. It is there that we are to look for the intent. The plaintiff and Gault were special partners; the order limits the insurance to the plaintiff. His name alone is inserted in the policy. His share in the shipment equalled the amount of the insurance, and the joint interest of him and Gault was not brought into view in making the contract. The letter of the plaintiff was not communicated, nor do I think it would have been very material if it had, for it is too equivocal and indefinite to operate by way of explanation or control of the policy. This question has been much discussed and litigated by the French and Italian writers, and different opinions have been entertained on the subject. Valin, vol. 2, p. 34, however, concludes that if one insure as his own a thing in common between him and others, the policy is valid only for his portion, unless he was the principal of the firm. *Emerigon, vol. 1, p. 293, 294, 295, after stating the various opinions on the point, says that the general rule is, that each copartner is presumed not to insure but for himself; and if one insures, and the insurance be declared to be for his account, it will enure only to the extent of the interest of such partner.

This opinion is entitled to the more weight, considering that the general principles of the law of insurance are the ■same in every country. I think, therefore, that the plaintiff is entitled to recover for a total loss, and that the verdict ought to stand.

Thompson, «T.

The only important question arising out of this case is, whether this insurance shall be considered as made for account of Richard M. Lawrence solely, or for account of Lawrence and Gault ? If for the former, the verdict must stand; if for the latter, it must be reduced to $366 and 60 cents. Several other points were raised by the defendant’s counsel on the argument, but which were either abandoned or fall within the rules and principles heretofore settled in this court. The principal one was with respect to the abandonment, whether it was made in season, the loss having happened in June, 1801, and the abandonment not made until the February following. Ths rule on that subject I understand to be, that the assured may abandon at any time while the loss continues total. If that be so, the abandonment in the'present instance wda in season. With respect to the main question, I am inclined to think the plaintiff is entitled to recover as for a total loss. Admitting the plaintiff to have only a joint interest in the subject with Grault, there is no doubt but he could insure his own interest therein separately, and, under a general averment of interest in the entire thing insured, prove an interest in any aliquot part, and recover damages for the loss in proportion to such part. This point was settled in this court in the case of Lawrence & Whitney v. Vanhorn & Clarkson. The policy declares the insurance to bo made for account of Richard M. Lawrence, and although the general printed words, “ for whomsoever it may concern,” might cover the interest of others, yet the written words serve in some measure as an index, by which to ascertain the intention and understanding of the parties. In the present case it must manifestly have been the understanding of the defendant and of the broker who 'effected the policj', that the insurance was on account of Richard M. Lawrence only. The order for insurance given by Lawrence and Whitney, the ^plaintiff’s agents, to the brokers, were explicit that the insurance was to be for account of Richard M. Lawrence. The letters written by the plaintiff to his agents, I think, are not entitled to much weight; for, from the one which they received, it may be doubtful whether it contained directions to insure on the joint account of Lawrence and Grault, or on the separate account of Lawrence. The one which never came to hand ought certainly to have no influence on the question. Whatever intimations were given by the ülaintiff to his agents, with respect to Gault’s interest in the cargo, they never came to the knowledge of the underwriter. The representation made to the defendant was, that the insurance was for account of Richard M. Lawrence, and ifj in any state of things, it would have been for the benefit of the underwriter to have confinéd the interest in cargo to Lawrence only, he might have urged, with great force and propriety, that such was the understanding of the parties at the time the policy ivas effected. The situations of Lawrence and Gault were different, and should an attempt have been made to recover, under different cir cumstances, on the joint interest of Lawrence and Gault, and the risk had been increased by the concern of Gault, in the subject insured, the underwriter would have had good right to urge the representation as a ground of fraud to avoid the policy. I think, from the policy itself, and from the understanding of the immediate contracting parties, it is clearly to be inferred that the insurance was m • tended for account of Richard M. Lawrence only. His interest is sufficient to cover the sum insured, and nothing appears in the case to induce a suspicion of fraud, or that he has, or is to derive any benefit from that part of the cargo restored to Gault. I am therefore of opinion that the plaintiff ought to have judgment for the 639 dollars and 34 cents.

Judgment for 366 dollars and sixty cents only.


source: Caselaw Access Project

author: Thompson, J.

license: Public Domain

text:
    Jackson, ex dem. Van Slyck and others, against Vedder.
    The line run by old Isaac Vroman, is the true line of the Tan Slyck patent Original locations of patents are of great weight in settling boundaries.
    This was an action of ejectment for lands in Montgomery, the sole question in which was, as to the point of beginning in the Yan Slyck patent, granted in 1716. A verdict having been given for the defendant, application was made for a new trial, as being contrary to evidence, the whole of *which, as applicable to the question, is detailed in the opinion, which is given without either case or argument, the whole contest being a matter of mere boundary.
   Thompson, J.

delivered the opinion cf the court. The principal question that arises in the case is, as to the place of beginning in the Yan Slyck patent. Whether it be at the extreme point of a certain flat, on the north side of the Mohawk River, or. at the river, near a certain ancient marked elm tree ? If. at the former, the plaintiff must 'prevail; if at the latter, the defendant must retain the verdict. The description of this place in the patent is ás follows: “Beginning by the westernmost end of a flat, that lies over against castle Tarighioris, by three small islands, which lie in the river, and from thence,” &c. We think it is clear,, from the testimony in the cause, that the natural termination in the flat referred to is at the place set up by-plaintiff ; and was the patent explicit that the beginning was at the westernmost end of the flat, without any other description, and no location had been made, we should suppose there was an end of the question. ■ But, as the description is somewhat vague and indefinite, all the objects not corresponding, the acts of the parties ought to have great weight in controlling the construction, and we think it is one of those cases where the first location under the patent ought to govern and conclude the parties : this patent is dated in the year 1716. The precise period of the first survey does not appear. Lawrence Yromau, the first witness examined on the part of the plaintiff, says, thaq ’U the year 1788, the Yan Slycks showed him an elm tree, as ¿ line run by the witness’s father for them, at the time of the division of their patent; but, at the same time, said they claimed beyond it. This claim, however, appears to have been at variance with their acts, and is entitled to but little weight. Adam Countryman, another of the plaintiff’s witnesses, speaks of a possession of one Ehel, as far back as seventy years, and that there was then a divi-. 'sion fence between him and the Yan Slycks, towards the upper end of the flats; there were some flats north of this fence improved by Ehel’; this fence was nearly half way between the mill of the Yan Slycks and Ehel’s house; and from the testimony of Hendrick Ery, it appears that the fence corresponds'with the line of the elm tree; but he says the Van Slycks told kimEhel held under them. This was the declaration of the party in his own favor, and must be rejected. This same witness says, that *Greorge Eacker held under the Harrison patent, which is the -adjoining patent, and that before the war, his clearing extended as far as the elm tree; and that a man by the name'of Kelly held an old possession on the south side, under the Van Slycks, corresponding with the line of the elm tree. Thus far the testimony on the part of the plaintiff goes to show a recognition of this as the line adopted by the Van Slycks, and the testimony of S. Ey-gert, on the part of the defendant, confirms and establishes this point beyond dispute. He says he has known this elm tree, as a marked tree, upwards of six and forty years, and has always understood that it was marked for the division line between the Harrison and Van Slyck patents. That Harrnanus Van Slyck, who, it was admitted by the counsel, was the grandfather of the lessors of the plaintiff, showed him this tree as standing on the division line. He also says that Eacker’s and Ehel’s possessions, before spoken of, are the same ; the former purchased of the latter, and that Eacker held under the Harrison patent. -That there is a fence on the line corresponding, with the elm tree, nearly the whole length of Harrison’s patent, and the possessions held accordingly, some of them ancient possessions, thirty or forty years old. He was present when this line was run by old Isaac Vroman, which he believes was before the war ; has seen it run at other times, and that the fences corresponded with it. We think, therefore, it is evident, from the whole testimony offered on the trial, that the line corresponding with the elm tree was the one originally set up and recognized by the Van Slycks as the true line .of their patent. The possessions generally appear to correspond with this line, and the description in the patent being rather doubtful, it is but reasonable and just that the Van. Slyck claim should be restricted to the original location. We lay out of view the conversation said to have taken place between Orone, the former possessor of the premises in question, and one Nicolls; the very questions and answers imply a dispute relative to the title, and can by no means be considered as a recognition by Orone of Van Slyck’s title, but only as a prudent precaution on his part to secure the buildings on any event, and the offer to buy, if made as stated, must be viewed in a light of a purchase of peace. The credit due to the witnesses, and the circumstances detailed by them on the trial, were proper subjects for the consideration and determination of the jury. We cannot say that injustice has been done; a fair trial has been *had, and there appears no prospect of any further light being thrown on the subject by another examination. Under these circumstances, we think a new trial ought not to be granted.

New trial refused.


author: Per Owriam.

text:
    The People against S. and J. Wright.
    A justice of the peace cannot grant a warrant to apprehend a criminal for aa offence committed in another state.
    The defendants were in the custody of the sheriff, on very heavy civil process, and while thus detained, a warrant was issued against them, by one of the special justices for the city of New York, grounded on an authenticated copy of an indictment found against them in Massachusetts, for a fraud alleged to have beefi committed there.

      Riker, (District-Attorney,) on these facts,
    moved to have them taken out of the custody of the sheriff and committed to bridewell.
   Per Owriam.

We cannot do it. We have no jurisdiction over offences committed in other states. The constitution points out a mode by which offenders, flying from one state into another, may be claimed. They must be demanded by the executive authority of the state from which they fled. The prisoners must be remanded.

Motion denied.


author: Per Curiam.

text:
    Van Horne against Petrie and others.
    Under the act concerning costs, a plaintiff must recover above fifty dollars damages, exclusive of the six cents or other costs, to entitle him, in tha supreme court, to costs of increase.
    The word “ recover,” in the statute, means what shall be assessed as damages eo nomine

    In this case the jury found a verdict in favor of the plaintiff, for 50 dollars damages and six cents costs. It was submitted to the court whether he was not entitled to his costs, of increase.
   Per Curiam.

We think he is not. The act declares that if the plaintiff “ shall not recover above the sum of fifty dollars, besides costs, he shall not recover any costs, but shall pay costs to the defendant.” The recovery here spoken of means the damages assessed Ipr the jury, so no-mine, exclusive of the costs which they may arbitrarily find. The finding of a jury as to costs, has nothing to do with those which are to be allowed in taxation, otherwise they might entirely control the statute on this subject; for, in many cases, where they could not, in conscience, give more than a cent in damages to the plaintiff, they might think it hard on him not to recover costs of increase, and ^therefore, to entitle him to them, they might find a verdict for one cent damages and seventy dollars costs; this would hardly be allowed. If the verdict were recorded in this form, the court would not hesitate, in rendering judgment on it, to reject the finding, as to the costs, as altogether nugatory, and not within the province of a jury; or, if they gave judgment for the costs thus found, the damages being under fifty dollars, they would (and 'such is our judgment here) order the plaintiff to pay costs to the defendant.


text:
    Seaman against Bailey.
    S. P. on a recovery in the common pleas for 25 dollars.
    This case, which came before the court on a writ of error to the common pleas of Orange county, was, like the former, a question of costs. The plaintiff, who was the plaintiff below, had recovered 25 dollars in the inferior court, and the j udges there had ordered costs to the defendant.

      Jones contended they ought to have been awarded to the plaintiff. That the word “recover” meant everything for which the judgment would be rendered. Therefore, as that would necessarily include the.damages assessed, and the costs also, the plaintiff would actually recover more than 25 dollars, and thus, on the plain words of the act, be entitled to receive costs and not to pay them. A distinction, he said, was to be taken between the wording (sec. 4) of the statute relating to the supreme court, and that of the common pleas, (sec. .5.) In the former, the expressions are “ fifty dollars besides costs.” In the latter they are “ shall not recover above the sum of fifty dollars.” Therefore, though the plaintiff in the last antecedent case was hold liable to pay to the defendant, it would not be a contradiction to that determination, now to decide that the defendant was bound to pay to the plaintiff.
   Per Curiam.

The plaintiff below, who is also plaintiff here, had his damages assessed by a jury of inquiry, over and above his costs and charges, to twenty-five dollars, and for those costs and charges to six cents. On this inquisition, the court of common pleas rendered judgment, that “ the plaintiff recover against the defendant his damages aforesaid, by the said inquisition above found, being twenty-five dollars and six cents; and ^further, that the plaintiff pay to the defendant eleven dollars and nine cents for his costs.”

This judgment the plaintiff insists on is erroneous, inasmuch as it awards costs to the defendant, when he ought to have paid costs to the plaintiff. For the reasons assigned in the preceding case of Van Horne v. Petrie and others, we think the judgment below was right. The fifth section of “ the act to reduce certain laws concerning costs into one statute,” 1 Rev. Laws, p. 580, enacts, that’ if in any action of the nature of the present, brought in any court of common pleas, “ the plaintiff shall not recover above the sum of twenty-five dollars, ho shall not recover any costs, but shall pay costs to the defendant.” In our opinion the plaintiff did not, within the meaning of this section, recover more than twenty-five dollars, notwithstanding the jury gave him six cents costs, nor does the manner of rendering judgment, which is in fact only for the damages assessed by the jury, make any difference, although the attorney, in making up the record, has in a parenthesis, in a way not very usual, stated these damages (very incorrectly by the by) to amount to twenty-five dollars and six cents. As, in the case just determined, we take no notice of the costs found by the jury, but consider the sum assessed as damages, as the recovery intended by the law, the judgment below must therefore be affirmed.

Judgment of affirmance.


author: Kent, Oh. J.

text:
    Jackson ex dem. Bleecker, against Whitford.
    A tenant deriving title under a lease cannot dispute his landlord's right by showing the premises are in another patent.
    Ejectment for lands in Saratoga. The plaintiff proved a lease of part of.the 18th lot in the 16th allotment of the grand division of the Saratoga patent, by John R. Bleecker (from whom his lessor established her title) to one John Skidmore, who entered, and held under it, paying rent as a tenant. That Skidmore sold the lease to one Danforth, who died leaving two sons, who divided the farm between themselves, acknowledging, however, the title of Bleecker. That from one of these sons the defendant acquired possession in exchange for another farm. The defendant admitted he thus came into the lands, but offered to prove they were no part of Saratoga patent, being actually out of its boundaries. This testimony being overruled, a verdict was found for the plaintiff, to set aside which the present application was made.
    * Woodworth, (Attorney-General,)
    for the defendant. We admit that a tenant cannot controvert the title of his landlord, but we contend that when the premises are not included in the lease, he can show that circumstance. If, however, this should be against us, we insist on our right to the usual notice to quit.
    Henry, contra,
    was stopped by the court.
   Kent, Oh. J.

The want of notice to quit was not alleged at the trial; it is too late, therefore, to urge it now, because had it been urged, the plaintiff might have been ready to establish it. The case does not mention it; we may, therefore, intend it was proved. As to the main ground, the defendant cannot be permitted to question his landlord’s title. This is a settled rule. He must 'give up to his landlord the possession he had from him. The premises were received as part of lot 18, and the tenant cannot now, as against his lord, say they are not so. The plaintiff may have possessed the lot long enough to shut out all adverse claims, and to gain himself a title by his possession only. The defendant can take nothing by his motion.

Motion denied.

       See Jackson ex dem. Low v. Reynolds, 1 Cai. R. 454; Jackson ex dem. Van Alen v. Vosburgh, 7 J. R. 186; Brant ex dan. Cuyler v. Livermore, 10 J. R. 358.


author: Livingston, J.

text:
    Hallock against T. and J. Powell.
    A count in assumpsit, and one on a warranty on a sale, may be joined, and not guilty pleaded to both. If not guilty be pleaded to the warranty, and non-assumpsit to the other count, and the plaintiff take judgment on the assumpsit, and enter a nolle prosequi on the warranty, the misjoinder is not moveable in arrest of judgment.
    This was an action on the warranty of the sale of a horse. The declaration contained two counts : one on the warranty, the other in assumpsit.

       To these the defendants pleaded not guilty, and non assumpserunt

    At the trial the plaintiff took a verdict on the count in assumpsit; but as to the first, entered a nolle prosequi, which was inserted on the postea, and also on the record.
    The defendants applied, on a case submitted, to arrest the judgment, because two incompatible counts were joined in the declaration,

         See Stuart v. Wilkins, Doug. 18, that the proper action is 'assumpsit oc the warranty.

       In The Executors of Evertson v. Miles, 6 Johns. Rep. 142, Van Ness, J.,. says both the counts were for a deceit. Spencer, J., in the same cause, p 143, says oJ e count was on an assumpsit, the other on a warranty.

   Livingston, J.

delivered the opinion of the court. The motion cannot be granted. Great strictness was formerly observed in preventing two distinct causes of action being joined in the same declaration. Many of the old cases, however, have been overruled, and are not now regarded as law. But notwithstanding some relaxation in this respect, courts seem averse to permitting actions for torts to be blended with those *on contracts— either because they required different pleas, or because the judgments are not the same. These are the reasons generally assigned. It may seem arrogant, after they have been so often repeated, to say there is not much weight in either of them. A plaintiff may declare in one suit, on twenty different notes or simple contracts, to every one of which there may be a distinct defence. To one may be alleged duress — to another infancy — coverture to another^— usury to a fourth, and so on. On some of the counts there may be judgment for the plaintiff, and on others for the defendant. These variety of pleas must all be tried at once, and be spread on one record, but still no objections on that account are listened to, if all the counts are laid “ quasi ex contractu. Every suit, therefore, should have been confined to a single cause of action, or some better reason assigned for erecting an insurmountable barrier between tbrts and eontracts. It is as easy to try an assault and battery, on not guilty pleaded, and the validity of a promissory note, on non assumpsit, in one action, as it is in any other two pleas where both the counts are on contract. Nor do we we see any difficulty in rendering as appropriate a judgment in one ease as the other. If there be a verdict in favor of the plaintiff, on the count as well for the battery, as on the plea of non assumpsit, and separate damages, as there might be, where would he the difficulty of entering the same on the roll according to the finding of the jury, of applying them to llie proper counts, and of rendering a judgment “that the plaintiff recover against the defendant his said damages, by the jury aforesaid in form aforesaid assessed, as also his- costs, &c. which damages and costs amount in the whole to so much.” However practicable this may be, (and there is no more difficulty in it than what may arise every day from joining several causes of action of the same kind in one declaration,) we are not for departing from established precedents. Although far from being satisfied with its reason, the practice itself is salutary. Joining several causes of action in one writ must perplex jurors, and create more or less confusion on the record. But whatever may be the reason for separating torts and contracts, these counts do not militate against the rule which has been adopted in England, which is, that two counts may be joined in the same declaration when their nature is the same, so that the same plea may be pleaded, and the same j udgment given.” Mast v. Goodson, Black. 848. Brotan v. Dixon, 1 D. & E. 274. Dixon v. Clifton, 2 Wils. 319. In the first of these *cases there were two counts, one on a special agreement (or contract) by the defendant, for a valuable consideration, to permit the plaintiff to land his goods on the defendant’s close: the breach assigned was an obstruction in landing the goods; the other was in trover for goods and coal. There was a general verdict; and the court were unanimous that these causes being both founded in tort, notwith standing the form of declaring, might well be joined. It-is true that the defendant had pleaded not guilty to both counts: and so he might have done here; for the plea of not guilty was not to his agreement, or undertaking, but to the charge of obstructing the plaintiff in violation of it So here, the breach assigned is, “ the defendants’ deceit in delivering a diseased horse, after undertaking to deliver one that was sound.” This was as much a misfeasance and a tort as obstructing the plaintiff in the use of a close, after having promised to let him enjoy it, and might have been answered, or put in issue, by not guilty.

In the case cited from D. & E. the plaintiff had, to a count for the wrongful conversion of a spaniel, joined one for a breach of promise in not returning him ; and on demurrer the court held the declaration good, because not guilty might be pleaded to the whole. In the case in Wilson, a count for misfeasance in not delivering certain malt, and one in trover, were permitted to be joined. So you may declare against a carrier on the custom of - the realm and in trover.

There are some cases which seem opposed to these which have been cited, and particularly one in Benninsgage v. Ralphson, 2 Show. 250, pl. 256. Where the plaintiff declared, as here, on an assumpsit and on a warranty, and it was adjudged they-could not be joined; but modern prao-tice appears more reasonable, and is sufficiently established to form a precedent. This motion, too, is made after the merits have been fairly tried, and a verdict been found for the plaintiff, which it is our duty to-support if possible.

Upon the whole, as the gist of the action in both counts was a deceit, or misfeasance, in delivering the plaintiff a distempered horse, and as not guilty might have been pleaded to both, the plaintiff is within the rule that has been mentioned, and is entitled to judgment.

The plaintiff having taken a verdict on the second count, the regular way will be to enter one for the defendant on the' other, as it is done in all cases where there is a different finding on different counts. I will only subjoin that there will *be no inconsistency in perfecting the roll in this way, notwithstanding the plea of guilty to one of the counts, which shows as has already been- remarked, that the perplexity arising from the pleas not being the same, cannot be a good reason for not permitting actions for wrongs to be joined with those on con tract.

Motion denied.

         The rule as now settled in the English courts seems to be, that where the injury arises out of a breach of contract, the action, though laid in tort, shall be deemed to arise ex contractu. See Powell v. Layton, 2 New Rep. 365; Max v. Roberts, ibid. 454, affirmed on a writ of error, 12 East, 88, and Weal v. King, ibid. 452, overruling that of Govett v. Radnidge, 3 East, 62

         Mr. Tidd says tiña rule is not correct. That the result of the oases is, where the process, or plea and judgment, are different, the actions cannot be joined. Tidd's K. B. 12, n. (to) Mansfield, Ch. J. of C. B., says the propriety of'joining “ depends nbl on the judgment only but on the form of the plea also. 2 Now Rep, 374.

       See Case v. Boughton, 11 Wend. 106.


text:
    Seagar against Sligerland.
    A father cannot maintain an action for debauching liis daughter, per quod servitium, amisit, if it appear that he connived at the intercourse with hia daughter,- nor can he avail himself of a custom of the country for persona courting to sleep together.
    This was an action for debauching the plaintiff’s daughter, whereby he lost her service, and was put to expense in her lying in, &c.
    The defendant applied, on a case made and submitted without argument, to set aside the verdict, which was for 450 dollars, as being contrary to law, against evidence, and because the damages were excessive.
    At the trial the plaintiff’s principal witness was his own daughter. She testified that- the defendant, after a promise of marriage,--frequently lay with her, and at length got her with child. That long before this period, the plaintiff and his wife knew that she and the defendant slept together at their house, without forbidding or discountenancing the intercourse. That before her pregnancy, her mother, in particular, had twice seen them in bed together.
   Per Curiam.

Trom the summary of the testimony we are constrained to say, there ought to have been a verdict for the defendant. In actions of this nature, the daughter is supposed to be violated with force, against the will and consent of the father. It is then, and then only, that he is entitled to compensation for the loss of her service. But when he consents or connives at the criminal intercourse, he seeks with very ill grace a retribution in damages. Vo-lenti non fit injuria. If lie be not particeps criminis, he is something very like it. His assurance in coming here for redress can be equalled only by the indifference with which he submitted to the sacrifice of his daughter’s chastity. We lay out of view the custom which it is agreed prevails in that part of the country, for young people, who are courting, to sleep together; nor can we conceive why this custom has been pressed into the plaintiff’s service. If it furnishes an excuse for his carelessness, or his daughter’s indiscretion, it is some apology also for the defendant. *At any rate, parents who countenance, or take no pains to abolish, at least within their own walls, a practice so indecorous or dangerous, have no right to complain, or ask satisfaction for consequences ■ which must so naturally follow from it. Nor is it an excuse for the parent to say that promises of marriage had been exchanged. If, under such engagements, he thought there was no harm in permitting what nothing but wedlock itself should have sanctioned, he knew the risk to which his daughter was exposed. These vows might be broken, or the young lady, as there is too much reason to believe was the case here, might, by her own indiscreet behavior, justify the lover in transferring his affections to some other object. On the daughter’s behavior, however, it is not necessary now to dwell, as we are not showing what measure of damages would have been just, but that none at all ought to have been given. This will more properly become a subject of inquiry if she shall think proper to bring an action for a breach of the marriage promise. The father’s conduct is more immediately in question in this suit; and as that was in the highest degree exceptionable, as he consented to if he did not encourage, knew of and took no measures to prevent the connections which has produced this action, we think it cannot be maintained. The verdict is, therefore, against law, and a new trial must be had. The judge having refused to nonsuit the plaintiff, as he ought to have done, the costs of the former trial must abide the event of the suit.

New trial

       Where the action is maintainable, the father may recover damages for the injury, “in losing the comfort of his child, in whose virtue he can feel no consolation, and as the parent of other children whose morals may be corrupted by her example.” Bedford v. M'Kewl, 3 Esp. Rep. 119. So if the action be by a person who stands in loco parentis, has adopted and shelters under his roof, the damages may be augmented beyond the mere service, to compensate for the injury done to the object on whom lie has thus placed his affection. Edmonson v. Machell, 2 D. & E. 4; Irwin v. Dearman, 11 East, 23.


text:
    Farrington against Rennie.
    If the plaintiff in trespass recover in this court under 60 dollars, he will not be entitled to costs, unless the judge certify that the freehold came in question.
    In trespass cle bonis asportatis the defendant pleaded not guilty, and gave notice that the locus in quo was his freehold.
    At the trial 17 dollars only were recovered. The plaintiff, however, contended he was entitled to full costs, as it appeared from the notice that the freehold had come in question. 1 Rev. Laws, 529.
   Per Curiam.

By the fourth section of the “act to reduce certain laws concerning costs, into one statute,” it is enacted, that “ if, in any personal action prosecuted in this court, the plaintiff shall not recover above the sum of fifty dollars besides costs, he shall not recover any costs, but shall pay costs to the defendant to be taxed.” “ Provided, however, that nothing therein contained “ shall *extend to any action where the freehold or title to land shall in anywise come in question.” In this case, we think it does not appear that it did.

Where liberum icnementum is put on the record in form of a plea, it does not necessarily follow that the title will come in question. The plaintiff by his replication may admit that fact, and yet have a right to recover. Still less inevitable is this conclusion, where, subjoined to the plea, is a notice of the kind given, to which a party cannot reply, and the matter of which may be altogether abandoned or not insisted on at the trial. Upon the whole, instead of looking at the pleadings, and relying on them how costs in these actions are to be disposed of, we think it best in future, in all cases of trial, to require a certificate of the judge who presided, “that the freehold, or title to lands and tenements, did come in question,” as the best and only evidence of costs being due under this proviso. Although the act be silent as to any certificate, we think it a mode of ascertaining the fact, the most free of objection, and not so liable to mistakes as conclusions drawn from a reference to the pleadings. In this case, we are of opinion that the plaintiff pay costs to the defendant.

Costs to the defendant.


text:
    Hough against Stover.

      h. motion in arrest is a non-enumerated motion, and the reasons need no be specified.
   It was ruled in this case at the last term, that an application in arrest of judgment was a non-enumerated motion and that the motion need not specify the reasons; because, as they are on the face of the record, they must necessarily appear to the adverse party.

         Since the decision in the text, motions in arrest of judgment have been classed among enumerated motions, and are entitled to a preference to other causes on the calendar. Rule of Saturday 18th February, 1809.


text:
    Staley against Barhite and Wife.
    If in assumpsit, by husband and wife, it be not shown why the wife is joined, it will be fatal on error. So if a jury be delivered in charge of a person not a constable.
    In Error, on certiorari.

   Ostrander submitted that the judgment obtained against the now plaintiff, by the present defendants, ought to be reversed: 1. Because the wife was joined in the action below, which was assumpsit, without showing how she had any interest; 2. Because it appeared from the record, that a person not a constable was sworn to attend the jury; and for these reasons the judgment was accordingly reversed.


author: Kent, Ch. J.

text:
    *Suckley against Delafield.
    Under a warranty against seizure, on account of illicit trade, the underwriter is liable for a loss by illicit trade barratrously carried on by the master. A representation, in time of peace, that a vessel shall sail in ballast, is substantially complied with, though she sail with a trunk of merchandize and ten barrels of gunpowder, laden on board without the knowledge of the owner.
    On a policy of insurance, upon the body of the ship Ann, effected on the following representation:

      “ The Ann will sail from hence in a few days, for the West Indies, in ballast.” The clause relating to contraband was stricken out, but that concerning illicit trade was retained.
    In the first count of the declaration, the loss was alleged to have taken place by seizure, by the French government, in St. Domingo. In the second it was stated to have arisen from the barratry of the master. The circumstances, as they appeared at the trial, were these:
    The vessel had neither invoice nor manifest of cargo, none having been shipped on board with the knowledge of the plaintiff, who was owner of the vessel. The master, however, had taken it on account of Grellet & Bell, of New York, a trunk of shoes, which he introduced into the ship as his own baggage; and, in addition to this, he privately conveyed into the Ann 10 barrels of gunpowder, which, with the assistance of the mate, he stowed under the ballast. Of the receipt on board of these articles, no entry whatsoever was made in the log-book. Thus circumstanced, the vessel sailed for St. Domingo, arrived there on the 26th of January, 1801; and, the agent of the plaintiff having discovered the shipment of the shoes- and gunpowder, she was, together with these articles, duly entered at the custom-house, at Cape Frangoise; but General Le Olere having arrived there on the 4th of February following, it became necessary to make a new entry, which was accordingly done. Soon after this, the vessel was seized by his directions, and confiscated for importing powder, contrary to the third article of the arret of the 16th of February. The judge charged, that the captain’s conduct, in secretly taking on board the powder, without the knowledge of the owner, was barratry; and, although the trunk of shoes was on board, yet that did not to him appear to have increased the risk of the voyage, nor was it a material circumstance. On this, the jury found a verdict for a total loss ; to set aside which, and grant a new trial, the defendant now applied on the following grounds: 1. Because the representation that the ship would sail in ballast was material and not true; 2. That the condemnation was for illicit trade; the warranty, therefore, in that respect, broken; 3. *That the act of the agent of the owners, entering the powder, was, in law, the act of the plaintiff.
    Pendleion, for the defendant.
    The representation of the state in which the vessel was to sail, we consider as material. Independent of the powder, which might be considered as within the representation, there was some cargo on board. It is for the court to determine whether its amount is to be taken into consideration, and this will depend upon the idea they will entertain of the meaning of the terms, sailing in ballast. The object was to show there would be no danger of capture or detention from having a cargo on board, and to induce a calculation of the premium, on the principle that there would be nothing on board to tempt a cruiser, to seize. It does not appear that the trunk was shipped for the benefit of the master. This, therefore, cannot be barratry. On the second point there can be no doubt; for, allowing the insurer to be liable for barratry, it must be barratry in something not within that which he is warranted against. It is plain the condemnation was for illicit trade. On this point the sentence is conclusive evidence, because pronounced by a competent tribunal, on a matter of municipal law. This is very different from admiralty sentences, deciding on the law of nations.. Here there was a condemnation for barrai-try in an illicit trade, from loss in which very trade the insurer is warranted free. The third point needs no argu merit. The act of an agent, respecting the subject matter of his agency, is clearly the act of his principal. The entry, therefore, of the vessel was an adoption of the captain’s conduct in carrying out the gunpowder.

      Hoffman, contra,
    was stopped by tbe court.

       See Ely v. Hallett, ante, and cases citod there.

   Kent, Ch. J.

We are oi' opinion tbe representation of sailing in ballast, was merely stating tbe vessel would not be exposed to tbe sea perils attending a loaded ship. It was made in a time of profound peace, and, in tbe present instance, was substantially performed. We have no doubt on tbe conduct of tbe master. It was certainly barratry, and tbe plaintiff must have judgment.

New trial denied.

         Where contraband of war and lawful goods are shipped in the same bottom, with the knowledge of the assurer and assured, the warranty against illicit trade, &c., in a policy on the lawful goods, will apply only to the goods insured. Brown v. Show, 1 Caines’ Rep. 489. To constitute a breach of the warranty in this clause, a condemnation on pretence of illicit trade, &c., is not enough: there must, it would seem, be a trading in fact, (Johnston v. Weir & Ludlow, 1 Caines’ Ca. in Er. xxix. S. C., confirmed by 2 Johns. Ca. 481, giving the sentence of the court of admiralty at full length, the decision in error verbatim as in Caines’,) and that followed by a seizure; (Graham v. Penn. Ins. Co., 1 Cond. Mar. 346, a. (a) therefore a loss by seizure only, in a port of necessity, after being refused entry at that of destination, is not a loss within the warranty, (Suydam & Wyckoff v. Mar. Ins. Co., 1 Johns. Rep. 181,) nor a'capture under the Berlin decree for touching at a port in England. Mumford v. Phœnix Ins. Co., 7 Johns. Rep. 449. But from a loss by any trading actually illicit, though innocently carried on, the underwriter is exonerated. As where a vessel commenced her loading under a permission by proclamation to take in a cargo not allowed to be exported or received otherwise, but was taken and condemned in consequence of continuing to lade and sailing after promulgation of an order revoking the license, the underwriter was held to be discharged, notwithstanding the lading and sailing were under a mistaken opinion of the commander-in-chief at the port of departure, that the trade was lawful. Tucker v. Juhel, 1 Johns. Rep. 20. Iti a policy on commissions on lawful goods, containing the above warranty, it will apply only to those lawful goods upon which the commissions are to arise, though the insurer know not of contraband of war being on board, and the assured be assignee of the contraband articles. De Peyster & Charlton v. Gardner, 1 Gaines’ Rep. 492.


text:
    *J. and S. Watson against Delafield.
    If an assured, having written several letters ordering insurance, and transmitted them by different conveyances, arrive, after a knowledge of a loss, with one of the letters, at a port from whence it is forwarded by the post, ho is bound to countermand the order by the same mail. On a motion to set aside a verdict, as not warranted by the facts, the court will not receive testimony or affidavits to supply what was deficient at the trial, in order to prevent a new investigation, unless the testimony be incontrovertible in its nature, such as a record, or the like. If the testimony be for the purpose of affording further inquiry, the court will receive it.
    On a policy of insurance, on 13,600 dollars, in doubloons, at and from Kingston in Jamaica to Baltimore.
    The case and arguments embraced a variety of points and facts, but as the decision turned on one principle only, it would be.useless to detail more of either than is applicable to the judgment. From the evidence it appeared that Andreas Finkin, on whose account the insurance was affected, wrote, on the 16th of August, 1801, a letter from Kingston, addressed to Mr. Stouffer, of Baltimore, his partner in this transaction, desiring insurance against all risks, to be effected on eight hundred and fifty doubloons on board the Harriet and Ann, Rhodes master from Jamaica to Baltimore. Duplicates . and triplicates of this letter were made, but by what vessel they were sent, or through what post-office they passed, was not shown, though it was proved they both arrived in Baltimore on the 7th of October following. As to the original, that was put on board a vessel called the friends, bound to Boston. After this Finkin embarked, with his money, in the Harriet and Ann, for Baltimore, as insured, but she, while on her passage, sprunlc a leak, in consequence of which she was abandoned by Finkin and her crew, all of whom were taken on board a ship named the Lucy, leaving the Harriet and Ann water-logged, so that she, with the money on board, in all probability foundered in a gale of wind. which shortly after came on. Soon after being taken in by the Lucy, Finkin was heard to say “ he was afraid the Harriet and Ann was not insured, though he had twice written to Mr. Stouffer for that purpose.” A few days after this they fell in with the Friends, beating up for Nor*folk, in distress, and the Lucy being destined to New England, Finkin and Rhodes quitted her for the Friends, in which they arrived, on the 30th of September, at Norfolk, which is a regular post town. On the 1st of October the master of the Friends delivered his letters into the post-office at Norfolk, and with them, as it would seem, the .letter of Finkin, ordering insurance. This appeared from its being proved that the post from Norfolk arrived at Baltimore in seven days, and from one of the letters for insuring being received on the 7th of October, marked, “Norfolk, Shp. 19.” While at Norfolk, Finkin wrote a letter to Boston, *dated the 1st of October; on the 6th he joined with Rhodes in a protest, and after remaining there seven or eight days, without writing to his correspondent in Baltimore, he at length hired a pilot-boat to take him there, but, from adverse winds, could, after beating five days, reach no further than Fell’s Point, from whence he immediately despatched to Mr. Stouffer a letter, informing him of the loss of the Harriet and Ann, which arrived at Baltimore on the 14th, and was the first information of the disaster, given to, or received by, Mr. Stouffer, who had, on the 8th, written to the plaintiffs for the present insurance, which was effected on the twelfth.
    Upon this testimony the judge charged the jury that in point of law, it was not incumbent on Mr. Finkin to have written from Norfolk, countermanding his order for insurance.
    The jury having found for the plaintiff, the application now made was to set aside the verdict for misdirection, and because Stouffer knew of the loss when he gave directions to insure

      Hoffman, previous to entering into the argument, offered some affidavits and papers, agreed to be read in some other suits on the same policy, should a new trial be ordered in this, and insisted on their admissibility, though making no part of the case, because they tended to supply defects in the testimony upon points in which the defendant rested on the insufficiency alone. He argued that these ought to be received, because the application was to the discretion of the court, and if they were satisfied, from the documents adduced, that the facts disputed must be established, it would be useless to award a new investigation to establish them. The practice of the court, he said, was in conformity to'his request. ' In Duncan v. Du-bois, January term, 1802, it became necessary on the trial to show a private act of congress. The common statute book was read, and a verdict found. Application was made to set it aside for admitting improper evidence Between the trial, and the time of making the motion, an exemplification had been received, and on being produced a new trial was refused, because the defect in testimony was supplied. In addition to this authority the English books furnished similar determinations. In Dyster v. Mundell, 1 Bos. & Pull. 427, an affidavit was received, falsifying the testimony on which a verdict was obtained, though the court observed it was unsual so to do. In Hibbert v. Garter, 1 D. & E. 747, after argument, and a new trial refused, an affidavit was ^received, and the former determination reversed. Therefore the court would certainly receive these papers to support a verdict, in which justice had been done. As it is done to show testimony, so it ought to establish what is questioned.

      Hanson, contra.
    This attempt is not only novel, but too dangerous to be tolerated. It is one thing to show newly discovered evidence, and another to take away out right of rebutting.

      Kent, Ch. J. stopping Harison. There is a great difference between offering evidence or affidavits to open an inquiry, and offering them to shut out investigation. The cases cited, from the decisions of Westminster Hall, >vere of the former description; the present application is to close the door against the admission of new light. As to the determination in Duncan v. Dubois, the document there adduced plainly established that no further elucidation could be shown. It could not have been controverted by other testimony. But we are now called upon to prevent controverting that which is controvertible. The papers cannot be received.
    Spencer, J. There would be extreme danger in permitting a party to thus read affidavits, which the opposite, side has had no opportunity to rebut, and thus decide the cause ex parte, when, on a trial, every thing contained in the depositions might be disproved. Were wc to grant the application, it would be a precedent for our hearing, on all subsequent occasions, what ought to be offered only to a jury.
    Tompkins, J. Suppose witnesses should be now ready to disprove every thing contained in the papers offered, are they to be shut out ? The application must be refused.

      Pendleton, for the defendant.
    When Finkin, on the first of October, wrote to Boston, he had the same opportunity of writing to Baltimore, and his silence arose only from a fear that the insurance was not effected. He might not, perhaps, have been able to recall his letter ordering insurance ; but as he was on the spot from whence it was sent at the very time when put into the post-office, and then was apprised of the loss, it was his duty to have forwarded a countermand. Wherever a party has, in good faith, directed insurance, if, before it be carried into execution,- he know a loss has taken place, he is bound to revoke hia commands, when by ordinary means it can be done. Nay, if he possibly may know it, he is equally under an obligation so to do, and it is this principle which has occasioned the regulations of the 38th (Qucere, 30,) article of the ordinances *of Louis XIY. that persons living within any distance of a port, at which an account of loss arrives, shall be presumed to have obtained knowledge of that fact, -within such a time as the news would have reached them, at the rate of a league and a half per hour, and if the policy be effected within that period, it is void, on account of the presumed fraud! Suppose Finkin had arrived safely, and, on his arrival, knew the letter with orders for insurance was, at the time when writing to Boston, going off in the same post, would he not have written to countermand his insurance, and save his premium? Doubtless he would. The same activity is required to be exerted in favor of the insurer, and therefore when a direction for insurance can, after a knowledge of loss, be countermanded, previous to its being carried into execution, it must be done, or it amounts, in law, to a fraud. 2 Emer. 137, citing Le Guidon, e. 4, and the ordinances of Louis XIV. The same doctrine is found in the Scotch and English authorities. Grieve v. Young, Millar, 65. Fitzher-hert v. Mather, 1 D. & E. 12. Finkin knew his letter for insurance was on board the ship in which he arrived. He knew this letter must necessarily, and according to the act of congress, be put by the captain into the post-office at Norfolk; he ought, then, to have accompanied it with one giving an account of the loss.

      Riggs and Hoffman, contra.
    The evidence, as stated in the case, does not establish that Finkin wrote to Boston by the mail. He might have sent his letter by a vessel. But it is a mistake to say he was bound to write. There is no settled principle requiring it of an assured, under circumstances like these. The authorities cited from Millar, and D. & E. only show that if a single letter ordering insurance be sent off after knowledge of a loss, it is in law, if there be no other order, fraudulently transmitted. But here three letters were written and sent off by three different conveyances, long antecedent to the disaster. Finkin’s arrival at a port where only one letter was, did not give him a power over the others. They were beyond his control. "We contend that the act by which insurance was directed, having been executed, and the letters fairly sent on their rout, the assured had a right to be passive, and take his chance. He had not, as in the cases cited, the power to stop all the orders. The reasonings of the French authors, as to fraud in policies, are not applicable to our code. By their ordinances, certain acts are required to be done; when they are omitted, their law raises the presumption of fraud. *With us fraud is never to be presumed; it must be found by a jury. With them it is matter of law ; with us matter of fact; and the very verdict, therefore, is proof against its existence. Besides, these very ordinances have been found so impolitic, that it has been necessary to frame a particular clause to obviate their baneful effects. The French policies, therefore, run “ good or bad news not to affect.” As there is not, by our law, any fraud to be presumed from the circumstances of the case, it was matter for jury consideration, and they have determined.

      Harison, in reply.

    Great as the power of the jury is in itself, and properly and constitutionally great as it ought to be, yet I know that this court exercises a control over them, whenever they have, from the facts before them, drawn wrong conclusions. Those facts upon principles of good faith, which peculiarly govern in cases of insurance, made it a legal duty to give information of the disaster instantly on arriving, as the order for insurance, then known to be going from the very spot where Finkin was, would otherwise induce a belief the vessel was in safety. In the casé cited from Millar, the loss was not known till an hour after the time at which the mail usually departed; yet, because no endeavor was made to countermand, and it was proved- that it might have been effectually made, the policy was held to be void. Had Mr. Finkin written on the first day of the month, the letter would, by the course of the post, have been received in Baltimore on the 7th, and thus have prevented the order being sent off on the 8th. It is no answer to say, Finkin might not have been acquainted with the regulation at the post-office, or even that Norfolk was a post town. As it was his duty to write, it was his duty also to inquire. But the presumption of law is, he was acquainted with the course of business relating to a transaction he was bound to perform. When doubtful whether the insurance- was effected or not, it was a point of good faith to communicate-the loss.
   Livingston, J.

delivered the opinion of the court. It is contended on the part of the defendant, either that Stouffer, when he gave the order for insurance, knew of the loss of the Harriet and Ann, (in which case the policy would certainly be void) or that Finkin might, and ought to, have communicated to his partner information of the accident, immediately after his arrival at Norfolk, because this would have prevented the insurance, and that his neglecting so to do was a constructive, or *a positive’ fraud, either of which will equally vacate the insurance.

As to the first allegation, that Stouffer knew of the loss when he wrote his letter of the 8th October, 1801, we are all satisfied that it is unsupported by any testimony whatever. There can be no doubt that he had no intelligence of the misfortune until the 14th of that month, and that he acted with perfect good faith in ordering the insurance. There is no room, therefore, to impute to him fraud or impropriety. Were the cause relieved from every embarrassment but what arises from his agency, we should, without difficulty or hesitation, say that justice has been done, and refuse a new trial. The conduct of his partner, however, is not so free from exception. If it has' not been such as the defendant had a right to expect, or the rules of law imposed, not,only be, but all those concerned with him, and who are of course answerable for his acts or negligence, must suffer. The case, as it respects the behaviour oí Fin-kin, is not without difficulty. If his letters of the 16th August, directing insurance, were written in good faith, and sent in season, he might suppose that as he had fairly run the risk of paying a premium, it was not incumbent on him, even after a loss, to take any step to his own prejudice. In this view of the subject, perhaps no actual fraud is to be imputed to him; nor do we mean to say that in all cases whatever, it is the duty of a party who has directed an insurance to send immediate notice to his agent of every disaster which happens with a view of defeating orders given in sincerity, merely because it is possible thb countermand may arrive in season. That question is not now before us, and when it occurs will require very serious deliberation. We are now called on to say whether, if a person, having sent orders to insure from a foreign country, shall afterwards'arrive in the neighbourhood of the port to which his letters are transmitted, and on .board of a vessel in which he knew one of them to be, under apprehensions also of insurance not being effected, he be not bound to give his agent information of a loss by the same mail which he must have known would carry his letter ?

The counsel for the defendant have referred us to the 38th article of the celebrated “ ordonnance de la marine” of Louis XIV. to Pothiér on Insurance, c. 1, s. 24, to Valin, vol. 2, 94, to 2 Emerigon, 137, and to Le Guidon, c. 4.

This article of the ordinance which has been cited “ annuls *all insurances made after the loss, or or arrival of the property assured, if the assured knew or might have known of the former, or the assurer of the latter, before the signature of the policy,” The ordinance then defines what shall amount to presumptive evidence of such knowledge; but, without investigating the propriety of this regulation, it is sufficient to say that this rule, in the extent bere prescribed, bas not been adopted either in England or in this country. It is not sufficient that the assured might have known of the loss. It must be proved that be did know it: and in many cases he may even know of the loss at the time of subscribing the policy, and yet the insurance be valid; as in the present case, if the policy bad been subscribed on the 30th of September, 1801, it would have been effectual, although Einkin then knew of the loss. But little light, therefore, will be reflected on the present question, either from this ordinance or the commentaries on it. Emerigon, it is true, in treating of insurances made by agents, (vol. 2, p, 148,) declares a policy void, “ if the principal, being informed in time of an accident, do not revoke his order.” In conformity with this principle we find a decision in the court of session, in Scotland, reported by Millar, p. 65. It is the case of Greive against .Young. On the 10th of December, 1799, Greive wrote to his correspondent in Edinburgh to insure his vessel. This letter was sent on the evening of the 10th to the Press, five miles off, on the London road, where it would be taken up by the post early the next morning. The letter arrived at Edinburgh about six o’clock in the afternoon of the lltb, and insurance was effected. At ten o’clock on the morning of the 11th, the ship sunk in the sight of Greive. The post left the Press usually before seven in the morning, but oftentimes as late as nine, ten or eleven, and sometimes, though seldom, not before one or two in the afternoon. On the 11th of December the post did not leave it till near ten. It was determined that Grieve ought, by express, to have informed his correspondent at Edinburgh of the disaster, to prevent insurance, as he had reason to think an express would have reached Edinburgh in time for that purpose. The cause being removed into the court of session, they thought it was not incumbent on Greive to send an express, but being satisfied that he had time to countermand the insurance iq the ordinary course of the post, and that it was his duty tc have done so, judgment was given for the underwriters.

In the case of Fitzherbert v. Mather, in the king’s bench *of England, an insurance was held not recoverable because the agent of the assured, who had written him a letter, on the 16th September, 1782, informing him of the sailing of a vessel in which he had shipped certain property on his account, on which letter insurance was effected, neglected to send him information of her loss, which came to his knowledge the next morning. “ The agent,” says Lord Mansñeld, in delivering his opinion in this cause, “ acted honestly when he wrote the let ter; but on the 16th, at night, he heard the ship was on shore, and the next morning he knew that she was lost. The post did not go out till the afternoon of that day, therefore he had full opportunity to send an account of the loss.” This last decision, it must be confessed, bore extremely hard on the assured, because Thomas, being his agent only for the purpose of making the shipment, it might well bo supposed, by himself and others, that his agency ceased as soon as the goods were on board, and he had sent on the invoice and bill of lading. It proceeds, however, as well as the case from Mil 1 ar, on the principle relied on by the defendant, that orders for insurance must be revoked, after a loss, where there isa probability the revocation will arrive in time. Nor will this appear unreasonable, when we recollect how much an underwriter is in the merchant’s power. lie may lose the chance of insuring, not only by hearing himself of the safe arrival of the property, but, is exposed to every possible diligence and activity, which interest will inspire, and which, of course, will be exerted by the other party to prevent an insurance in "such an event. Not only the mail, but expresses, will be resorted to, tc convey the important intelligence. If, then, a person be permitted, in this way, to prevent an insurance, or an order given, in good faith, and thus deprive the assurer of a premium, there is no hardship in imposing on him a reasonable diligence, in communicating a disaster, so long as sucb information may very probably be expected to arrive in time. He should not be allowed to be active to save a premium, and passive in obtaining an indemnity against a loss, which has happened early enough tobe communicated, by ordinary diligence, to the underwriter. If, in the present case the Harriet and Ann had arrived safe at Norfolk on the same day with the friends, no one can doubt that Mr. Finkin would have tried to stop his letter in transitu, or would immediately have despatched an express to Baltimore or at least have written by *the first mail; in which case, insurance would not have been made. This arriving in a vessel on board of which was one of his letters directing insurance, and, under apprehensions that none was effected, are circumstances which have very great influence on our decision. He had reason to believe, when he arrived at Norfolk, that no insurance was made, and must therefore have known that it was in his power to prevent it. It cannot be believed he was unable to get a letter into the post-office, at that place, and still less, that he was ignorant that his letter to Mr. Stouffer, which was on board the Friends, would be lodged there by the captain. There is something said of his being sick part of the time, but it will be remembered, that on the 1st of October, he wrote to Mr. Merry, and on the 16th, he was on shore. It was as easy to write to Mr. Stouffer as to Mr. Merry, and if too unwell to go on shore, he might easily have sent it to the post-office. It is not very clear that he might not have obtained from the captain of the Friends possession of his own letter to his partner, if he had asked for it. Perhaps, however, this could not be done, as masters, who arrive in the United States, are, by law, to deliver to the postmaster all letters which are brought in their vessels. Be this as it may, Finkin must either be presumed conusant of the law on this subject, in which case he would know that his letter would be put in the post-office, or he must have inquired of the captain what would be done with it, who would have given him this information. His permitting this letter, then, to go forward, under circumstances of this na ture, without taking any one step to counteract its effect, must be deemed, if not a misrepresentation, at least so gross a neglect as to vacate the contract altogether. His silence and inactivity could hardly have been accidental. A designing man would reason, as it is too probable he did, “My other letters may not yet have reached Baltimore; my only hope, therefore, is on the one which will be forwarded by the Captain of the Friends; I will, then, let this go on and say nothing of the accident until it has been acted on.” Such reasoning cannot be endured. It will not help the plaintiff, to say that the other letters, or one of them, might have come to hand. To this an answer has already been given. Mr. Finkin himself thought otherwise, and, at any rate, it was no excuse for letting a letter go on uncontradicted, after the loss was known. If the other letters had miscarried, the insurance *would have been effected on the one thus improperly forwarded. Another answer is, that as this letter did go on, ho should at least have given the underwriters, who were so much in his power, a chance of receiving timely information of the loss. Had this been done and insurance affected on either of the other letters, all would have been safe. The principle of the decisions, which have been cited, and which we here adopt, will prevent frauds, will place the assurer on a more equal footing with the merchant, will produce good faith in transactions of this nature, and not leave it in the power of a crafty or designing man, to make his own advantage, to the prejudice of a third person, of every circumstance which may happen, be it disastrous or otherwise. Upon the whole, therefore, after mature deliberation, we think the judge who tried this cause was mistaken in his charge, and that it was, under all the circumstances of this case, incumbent on Finkin to have written to his partner, apprizing him of tbe loss of tbe Harriet and Ann, and that, not baying done so, a new trial must be granted, with costs to abide tbe event of tbe suit.

New trial.

       See this case, 1 Johns. Rep. 150, and the special verdict on the new trial granted in the text, upon which the court ordered judgment for th« defendant.


text:
    Hallock against Robinson.
    fc a plaintiff declare in trespass generally, and the defendant plead liberum itmemenlum, setting out the close with metes and bounds, the plaintiff should new assign. If he do not, and conclude with an averment, it is fatal on special demurrer. Amendment allowed, on payment of costs, after demurrer argued, and- the judgment of the court pronounced, though an amendment had once before been granted.
    On demurrer guare clausum fregii.

    The plaintiff declared generally, for breaking and entering bis close in the township of Brookhaven. The defendant pleaded liberum tenementum, specifying and setting it out by metes and bounds. To this the plaintiff, without new assigning, replied his own freehold, traversing the free-bold of the defendant, and concluding with an ethoc paratus, praying bis damages. The defendant demurred specially, and showed for cause a variety of reasons, but relied principally on the want of a new assignment, and the not concluding to the country.

      Sanford, for tbe demurrant.
    The replication, we contend, is defective. The law in actions of trespass is this: The plaintiff may declare generally for a trespass in a certain town, or be may particularize tbe close, give it a name, and set it out with metes and bounds. In tbe latter case the defendant is bound to answer to a trespass in that close. In tbe former tbe defendant may plead liberum tenementum,
      and particularize the locus in quo. If this be done, the plaintiff has but two *modes in which to reply. He must either new assign, or admit the trespass committed in the place specified in the plea, and take issue on its being the freehold of the defendant. If so, the question then is, is this such a replication ? In all other cases, where there is not due certainty in the first instance, it is ground for a demurrer. In trespass, to compel to this certainty, pleaders have framed the common bar, which drives the plaintiff, by a new assignment, to that precision which he ought, in his declaration, to have adopted, and takes from him the advantage, he would otherwise acquire by this general mode of declaring, of giving in evidence a trespass in any close in the town. If it was meant to rely on the trespass committed in the close specified in the defendant’s plea, the plaintiff should have taken issue on its being the freehold of the defendant, and have concluded to the country. Either of these causes of demurrer are fatal to the replication.

      Woods, contra.
    The principles of pleading, in this form of action, are not controverted. As to the replication in question, in Lilly, 440, there is a precedent exactly similar. The issue was open to the defendant, who might have taken it on the traverse. Esp. N. P. 410 ; Bull. N. P. 93 ; Stra. 871.

      Sanford, in reply.
    The entry in Lilly contains nothing incompatible with what has been stated. The plaintiff there set out his close with certainty by name. Therefore the object of the defendant here was answered. Where the plaintiff takes issue on the place, as' alleged in the plea, he must conclude to the country. The replication is as general as the declaration, and no answer to the plea of freehold, in the close set forth by the defendant. In 6 Bac. Abr. by Grwillim, 620, citing Lutw. 1399, it is laid down as settled, that when, to a plea of liberum tenementum, the plaintiff does not new assign, he must take issue on the plea, and conclude to the country.

        Baynham v. Mathews. The rule is, wherever the whole substance of the plea is put in issue by the replication, you may conclude to the country, notwithstanding the traverse. When this is not the case, there must be aa. averment. See Manhattan Company v. Miller, ante, 61, n. (a.)

   Kent, Ch. J.

The replication is'evidently no answer to the plea of the defendant, setting forth,- by specific ttQtes and bounds, a particular close as his freehold. The plaintiff replies only that the close in the declaration is his close, but Says nothing as to the specific close in the plea, which is left totally unanswered. If the plaintiff had averred the dose in the plea to be his, he ought perhaps to have tendered an issue. As, however, we think the plaintiff should have new assigned, *it is unnecessary to decide in what manner his replication should have concluded.

Woods applied for leave to amend on co'sts.

Sanford resisted, as there had been one amendment without costs, and hoped, if it were granted, it would be on payment of those formerly incurred.

Kent, Oh, J. Amend on payment of the costs of this demurrer.'

Judgment for the demurrant, with leave to amend.


author: Per Our ¡am.

text:
    Van Cott against Negus.
    In trespass in the common pleas, for running foul of the plaintiff’s vessel, if he recover only six cents damages and six cents costs, he must pay eoeis to the defendant.
    Trespass on the ease, brought in the common pleas, against the defendant, for so negligently and unskilfully managing his vessel, that she ran foul of and injured the vessel of the plaintiff, and disabled some of his sailors. The jury found a verdict for the plaintiff, with six cents damages, and six cents costs. It was submitted to the court, to determine whether the plaintiff should recover his costs, or pay costs to the defendant.
   Per Our ¡am.

We think the defendant entitled to receive costs from the plaintiff.

Costs to the defendant.