text:
    Paschal N. Smith against Daniel Williams.
    An owner of a forPmore°than ílot Jif tesurable interest in her. Judicial acts of foreign tribunals are prima facie to reet“thet-efor'ej be teldeagainst them.
    IN error on a bill of exceptions, tendered and sealed at the trial of a cause upon a policy of insurance, on the body of the ship Prosper, in which, Williams, the now defendant, was plaintiff below. The case, as r ’ stated in the 2 Nexv- York Term Reports, from the . . first to the fourth page inclusive, is accurately detailed, in all respects but one. It is there mentioned, in PaKe 4, that the vessel sold under the attachment for $8,400, instead of 38,500 reals of vellón. In the opinion, however, of Thompson, J. page 19, the sums are correctly specified.
    The error now relied on was, that the judge at nisiprius, in conformity to the decision of the Supreme Court, ruled the now defendant to have an insurable interest in the vessel, to the extent of the sum lie paid for her, though she was then bottomed for a larger amount, and that, unless he, at the time of effecting the policy, knew of the lien upon her, he had a right to a verdict for the value insured, after deducting the price at wffiich the vessel sold.
    Thompson, J. assigned the reasons of the determination, as they are given in 2 JVew- York Term Reports, 19, 20, 21.

      Harison, for the plaintiff. The question now before the court is, whether a man buying a vessel, bottomed for more than her value, has an insurable interest ? Where a ship is hypothecated, an owner can insure only his surplus interest, beyond the amount of the lien. Here he had none. His being a bona fide purchaser, does not alter the question.— He takes the title of his vendor, and stands exactly in his situation. Therefore, as to the effect of the bottomry, Delavigne and Williams are to be considered as one person, and the property equally affected by the lien, whether in the hands of one or the other* It is like the common case of a purchase of a chattel from an apparent owner. The vendee, unless it be sold in a market overt, takes it subject to the rights of third persons. The defendant, therefore, could acquire no greater interest under the sale, than that which Delavigne could dispose of; that is, the surplus value beyond the hypothecation. To the extent of the bottomry bond, the holder of the bond is owner of the vessel; and herein it differs from a mortgage.— This will appear by adverting to a bottomry bond, which is, in effect, a species of insurance, nay, its twin-brother. In the former, the money is advanced before the loss; in the latter, after. In either case, the original owner is, in case of accident, equally secure, as the money is not, like a mortgage, to be returned. By payment of a loss, an insurer becomes a purchaser ; so, on a bottomry, which is nothing more than an anticipated insurance, the lender, on making the advance, acquires the property to the amount of the money he pays. Consequently, the original owner cannot have any interest, excepting that which remains beyond the extent of what he borrows. It follows, therefore, that he should not be permitted to insure more than that excess. A contrary doctrine would be to tolerate double insurances, and open a wide door to fraud. A man may take up two-thirds of the worth of his ship on bottomry ; if he may also cover, by an insurance, her full value, he would, in case of a loss, put into his pocket, the two-thirds he had borrowed. This would be a temptation to dishonesty. Reason and policy, therefore, require, that only the excess of value beyond the sum for which a vessel is bottomed, should, in the .original owner, be deemed an insurable interest. For the lender of the money advanced, is, to the extent of the loan, the actual owner. In cases of jettison, he is bound to contribute. 2 Val. 19. 2 Emer. 504, citing Le Guidon, ch. 19, art. 5. This, it may be said, is the law of France, but that the rule in England is different. It is not, however, on that account to be preferred by us.. The doctrine, from the authorities cited, is that of the general commercial code, drawn from the oldest books in the world, and resting upon the sanction of various nations in all ages, not upon the maritime ordinances of any particular country. For, if the vessel perishes, the lender on bottomry must be the sufferer; if she be saved, he will be the gainer, and he ought, then, to contribute, which can be only as owner. As a species of double insurance, the policy now before the court is necessarily void. 2 Val. 61. 1 Emer. 236, 7. For, on a contract which is purely one of indemnity, a clear and certain gain of the sum insured, can never be allowed to take place. It is not correct to argue, that the insurance will be void or not, according as the fact of the bottomry was, or was not known to the insured. Ignorance, in many instances, furnishes no pretext for upholding the policy. If a vessel be not seaworthy, the insurance will be void, though it was not known that she was so. Because, the concealment of a material fact, though innocently done, vacates the agree, ment, it being the duty of the insured “ from motives “ of common prudence, to inform himself of every “ fact and circumstance, which may throw the small- “ est light on the nature and perils of the proposed <e adventure.” Marsh. 347. Millar, 40, 41, 46, 47, 97, to the same point. It is necessary, now, to proceed to another foundation of the law of insurance, which presents to the recovery an obstacle, which, it is conceived, is insurmountable. Every policy bona jide effected, containe an implied engagement, that, in case of abandonment, the underwriter shall be entitled to receive the subject matter. It is an essential part of the contract, that the benefit of abandonment shall be saved to the insurer. Otherwise, a loss not absolute in itself, but a mere technical total, on which two-thirds may be recovered, would be totally lost to the underwriter. Tested by this rule, the policy, now litigated, fails in an essential ingredient. The bottomry, though latent and unknown, destroyed that right to the property on abandonment, which was the basis of the insurer’s undertaking, and therefore avoided the policy. Any thing which takes away from the underwriter those rights, on having of which he is supposed to have entered into the contract, vacates the agreement. A previous direction not to pursue one of three routes, on a voyage, where it was usual to leave the whole three to the discretion of the captain, was held to prevent a recovery, because the underwriter made his calculation, on the advantage of the captain’s judgment as to all.—Middlewood v. Blakes, 7 D. & E. 162. The same principle ought to govern on the present occasion.

      Riggs and Benson, contra.
    Though the position, that a purchaser of a chattel takes it liable to all the incumbrances which affect it in the hands of the seller, were correct, still it may have further exceptions, than the one arising from a sale in market overt. Liens may become invalid from the laches of the persons who hold them. ■ As to markets overt, what are they in this country ? Streets, for wood and hay, and other articles. Shops and warehouses, for goods. Wharves, for ships. If property is entrusted to another in such a manner that he may dispose of it, a bona fide sale is good. It is incumbent tin the holder of a bottomry bond to take possession of the vessel on her arrival at her first port. If he do not, it is a waiver of his lien, and the vessel, in the present instance, being bona fide sold in a market overt, for such a wharf must be considered, the title of the purchaser is good against all the world. It is contended, however, that he who borrows on bottomry, has not in his vessel, any insurable interest, except for her surplus value beyond the. sdm taken up. There is no such rule in our law, nor id that of England, for none such can subsist. Suppose an owner of a ship in a foreign port, bottoms her for a sum, which he lays out in masts, yards, and repairs, to enable her to prosecute the voyage ; is not the vessel enhanced in value by so much as is thus actually converted into ship ? and cannot the owner insure that, into which the money is thus' changed? It is true, the lender ón hypothecation. has but a special insurable interest, which he is bound to particularize. Therefore, that of the o~vnet remains as before. The doctrine of double insurances does not apply to this case. It supposes the insured to have been the borrower of the money. That is not so here ; for the defendant, Williams, knew not it was taken up. That the security was not by way of mortgage, if it makes any difference in the question, operates in our' favour. For a mortgage passes a legal interest in the subject. Bottomry does not; it only gives a right, if exercised indue time, of going into court and obtaining process against the vessel. The difference is the same as between judgments and mortgages. The first give a lien, but no interest, which is to be acquired only by legal proceedings, instituted upon them. But even in the case of an absolute assignment of a ship, if in the nature of a mortgage, the mortgagor is deemed the legal owner ; liable for the necessaries and repairs of the vessel, and, until possession taken by the mortgagee, he alone is entitled to sue for the freight earned. 1 H. Black. 117 (n.) Call it, then, be said, that the mortgagor has not an insurable interest f If so, why has not the contract been, disaffirmed, and the premium returned ? It has been urged, however, that the right to have the benefit of the property abandoned, has been lost to the insurer, and therefore the policy is void. Taking it for granted, as has been- insisted, that the now defendant, acquired by his purchase no title, but what was subject to the lien on the vessel, as he was a bona fide purchaser, he. had a recourse against the vendor, and on abandonment, that recourse passed with the vessel to the insurer. Besides, the idea .of this loss of the property insured, proceeds on the supposition. that the Consultzdo in Spain rendered a proper judg~ ment. This we deny, for we contend that the lien by the bottornry was gone, upon the vessel's sailing from'the port of her first arrival. The lender should have followed the ship, demanded his money, and on refusal, have applied to the admiralty for process against the .vessel. It is not, however, true, that the property has been lost to the underwriter. He gets the amount, of what it sold for, deducted; and, therefore, obtains the full benefit of the abandonment.

      Harison, in reply. Tó make our streets and wharves, markets overt, they should have clerks, and records of the sales made in them. Those are the ingredients required by law. There is nothing, therefore, .shown to do away the position, that the defendant’s title could be no better than his vendor’s. If so, he had no interest, but in the surplus, beyond the amount of the bond. Laying out on the vessel, whatever is raised on bottomry, does not increase the interest of the borrower. For it is at .the expense of the lender. His money, not that of the insured, has, in case of loss, been expended. To sanction, therefore, the present policy, would be in fact to authorise double insurances. It is a mistake to imagine there ought to have been a return of premium to justify a resistance to the suit, or rescind the contract • 31 as it is called. In cases of non compliance with war-' ranties, the premium is not always returned, though it may be recovered in the very action, where the policy is declared to be void. We trust, therefore, a venire de novo will be directed.

        Chinnery v. Blackburns.

   Per curiam, delivered by Lansing, chancellor.

It has been admitted by the parties, and it is so stated in the bill of exceptions in this cause, that the defendant was entitled to have recovered in the court below, if the interest intended to be covered by the policy was insurable.

It has also been admitted in argument, that the intent of the parties, deducible from the policy, was to constitute it an interest, and not a wager policy, and the only questions on which the opinion of the court is required ; are, 1st. Whether the interest of the obligee, of the bottomry bond was a valid lien, and such a one as would be enforced by the maritime law ? 2d. Whether the vessel in question, being subject to a bottomry bond, greater in amount than its value, was insurable by the defendant, Williams ?

The only objections which have been urged to the validity of the bottomry bond, as affecting the interests in controversy between the parties, are, 1st. — • That it was not enforced in due time. 2d. That as the defendant, Williams, was ignorant of its existence, at the time the policy was underwritten, it ought not to vitiate it, as having been made under the impression of mutual error.

As to the objection that the bottomry bond has not been enforced in due time.

The policy appears to have been made on the 13th day of May, 1800, on a voyage from Nero-York to - Algiers, with liberty to touch at Cadiz. The ship was purchased in the November preceding, by the defendant, Williams, of Casimir Delavigne, for whom a bottomry bond had been executed on it, by ■procuration, at Amsterdam, previous to such sale but no other circumstance respecting the time when such bond was executed, the voyage described in it, -or the .port considered as the home port of the ship, . as to the bottomry, were offered in evidence.

:It, however, appears, that the bottomry bond was given for 6,500 dollars, which is 1,500 more than the valuation of the ship in the policy, and that she was sold at Cadiz, ,b.y order of the royal Consulado, who, it is not contended, had not a competent j urisdiction, and who/acted judicially on the.occasion.

The judgments of,foreign courts, having competent jurisdiction, have always been considered prima facie, as binding in the points on which they have expressly adjudged. The period of the inception of the contract, on the voyage which.was the object of it, not having-been, disclosed, -for aught that appears,.it -may, though made at Amsterdam, as it was done by .procuration, -have been executed the day before the . sale i to.the defendant, and may have attached to the -voyage insured, .terminating it. at Cadiz. The ship "was at Ne%o-Xork, at the time of the sale, and there ".is-no proof that she left that port, till she sailed on the voyage insured. Hence there is no ground legally to infer a laches in.enforcing the lien created by the- bottomry bond. '

If the voyage to Cadiz, was the voyage insured, the intermediate transfer to the defendant, Williams, 'certainly could not avoid.the bond, or impair the rights of the obligor. .-For if a transfer, pending the voyage, constituted an .avoidance, the lien supposed = to be created by.the bottomry bond,.must be completely in the power of the obligor to defeat, whenever it comported with his views. This would lead to consequences too clear to require elucidation.

As to the 2d objection. The insurer is a perfect stranger to the subject insured; whatever relates to it, must be considered as peculiarly resting in the knowledge of the insured, and the law imposes it on him to acquire a competent information respecting it. This is a salutary and well established rule. For how is it possible to determine with unerring certainty, the exact state of intelligence he possessed ? Or what portion of the ignorance he possesses, is to be attributed to his want of exertion, or to his wish of concealment of the latent defects, which may affect his interest ? If he does not possess the full knowledge of every circumstance respecting it, involving the interests of others, it may be his misfortune, but it must legally be imputed to him as a fault.

Every reasonable intendment is to be admitted in support of the judgment of the Róyal Consulado. The defendant, Williams, was on the spot, clothed with the powers of owner and master. He was interested, in the one capacity, to vindicate his right of property; in the other, as agent for the concerned, to repel any illegal claims : He had an opportunity to make a de« fence. In all events, if the judgment was examinable, he might have furnished the reasons and proofs to warrant it; that this has not been done, affords a strong inference that it was not in his power.

The second question is important as it respects the general interests of commerce, and it is peculiarly desirable, that a decision of the court should satisfactorily put it at rest.

Whenever the bottomry and the policy are coex*. , J 1 J tensive, as to voyage and time, no collision can arise. If the ship arrives at its port of destination in safety, the policy is satisfied ; but the lien created by the bottomry, still exists. If the ship had been injured by any of the perils insured against, so as to entitle the insured to an average loss, it could not affect the interests of either of the parties to the bottomry bond. But if the ship perishes totally; or if a technical total loss is sustained before she arrives at her port, the insured would recover, if the policy is valid, without interest. For the value of the ship being covered by the bottomry, the obligee cannot recover the money advanced on it; his right to it ceasing with the destruction of the ship, or the necessary dereliction of the voyage. To this intent, the obligee in the bottomry bond must, therefore, be considered as owner, for he is to receive nothing, unless the voyage is made.

If the bottomry interest existed before the por lipy was underwritten, and instead of being limited to the ulterior port of destination, described in the policy, was to be enforced at any intermediate port at which the ship might touch; or, if the ship was so much deteriorated as to constitute it a technical total loss, at the port of her destination, no abandonment could be made with effect, and the insurers would be entangled in difficulties, which they had no reason to calculate upon, at the time of making the policy.

The policy of insurance, is always considered as a mere contract of indemnity, and the policy of the maritime law, is averse to any devices which may weaken the inducement to exertions, for saving either ship or cargo by the owner,' master or mariners, and operate as an incentive to fraud; but in the first case put, it would operate to place the value of the property lost by the obligee in the bottomry bond, in the pocket of the insured.

We find no express authorities on this subject, in our own, or the British courts ; but if the positions laid down by Emerigon and Valin, which have been cited, are to be received as correct, they would fully establish the point, that the value covered by the bottomry is not an insurable interest.

To the objections which have been urged against receiving the law from Valin and Emerigon, on their authority, it may be observed, that their positions on this subject, appear untinctured by local considerations, and if the mind assents to their correctness, there can be no reason for resisting truth, from whatever source it may be derived.

The treatise of Valin, is professedly a commentary on the ordinances of Louis XIV. But in illustrating the doctrines they sanction and enforce, it refers to the antecedent usages which had obtained in the several nations of Europe; the ordinances of the free Imperial, French, Italian and Hanseatic towns; the city of Wisbuy on the Baltic ; imperial and royal ordinances ; and, among the rest, some of their principles are said to have been deduced from the ordinances of Eleanor, wife of Henry, II. king of England, then dutchess of Guyenne, one of the fiefs held of the crown of France, and of consequence, in the spirit of those times, the dutchess was considered as one of its vassals. These ordinances were afterwards confirmed and enlarged, according to the French writers, by her son, Richard I. king of England, who was also duke of Guyenne, and, of course, stood in the same relation to the crown of France with his mcv ther. But the English respect them as the production of that king. This is merely intimated by way of illustrating the origin of the usages which influence the modern commercial regulations, and the little regard which has been paid to the authority which promulgated them ; for, in this instance, on the foot of authority, they would probably have been indignantly rejected by the French, as the act of one of the feudatories of the monarchy.

The laws of Oleron, could receive no sanction in France ; and, perhaps, not in England, from the authority of king Richard; and it has even been doubted, from the language in which they are published, and from the places mentioned in them, whether their object extended beyond the dutchy of Guyenne. There were unfavourable circumstances arising from the relative situation of the prince who enacted, and the princes whose subjects received them, to repel their introduction, even on the ordinary ground of public utility and convenience; and yet it appears, from the French writers, that they are considered as forming part of their maritime code.

The laws of Oleron, have been mentioned as a compilation, and probably were so. They must have obtained the authority attached to them, in consequence of their intrinsic worth, and the estimation in which they were held, to regulate the intercourse between the merchants of different nations.

If such their origin, and such the steps in which we trace the progression of these celebrated codes, from ancient to modern times, why should the inquiry whence they originated, be permitted to banish from our country, the well established, salutaiy usages of trade, sanctioned by the long experience of the European nations ?

The English courts consult the French authors, on general maritime law. Par/c observes, that the ordinances of Louis XIV. “are an excellént body of sea-laws, to the merit of which all Europe has borne testimony;" and he remarks, that they had the good fortune to meet with a laborious commentator in Valin, who, he says, “ being thoroughly sensible of .he advantages, which his country must necessarily derive from such an excellent code, has, with a degree of labour and industry, which excite our admiration, and which are highly deserving of imitation, placed it in the most favourable point of view ; has cleared up every obscurity, by tracing their laws to their ancient sources,” &c.

Of Emerigon, he also speaks in terms of high approbation, and of the “ infinite labour, unwearied study and refiection,” with which he had made his collection.

All our laws relative to insurances and bottomrv, are derived to us, from similar sources, and I rather think, though I speak only from general recollection, not having examined the point, that few other than restraining statutes exist in Britain, respecting them.

This case has been likened to the case of a judgment and mortgage ; but in both cases, though the existence of the lien must necessarily terminate by the operation of a title paramount, or with the destruction of the subject on which it attaches, the debt survives.

The right of the holders of those securities, may be more circumscribed by events of that description, as to object, but retain all their energy as to the per son and remaining Property of the judgment debtor, or mortgagor, and the safety of the property bound by the juci~ment or mortgage, does not form the es~ sence of the debt~ Not so with a bottomry interest, which perishes with the ship to which it attaches.

It will be perceived, that I have not confined myself precisely to the line in which this case has been discussed, or pursued it in the extent to which it was protracted ; that I limit my opinion simply to the points, that there is no ground to question the judgment of the royal consulado, and that the owner of a ship, covered by a bottomry bond, to an amount beyond her value, has not an insurable interest.

I am therefore of opinion, that the judgment of the supreme court be reversed.

Judgment of reversal.

       2 Emer. 386. 396.

       2 Val. 61.

       Conference de Performance, Louis XIV.7.

       Park's, Intra. 39.

       Ibid, 40.


source: Caselaw Access Project

author: Per Curiam, delivered by Kent, Ch. J.

license: Public Domain

text:
    Abraham Bloodgood, Appellant, against Martinus Zeily, Respondent.

      If after a inortgage be forfeited, and execution sued out, on a judgment recurered on the bond-, aeon%`eyance Lu secure a portion of the mor; gage money, be made of other property, redeemable on paying a certain sum at a future day, such conveyance will partake of the quality of the original transaction, and be deemed a mortgage, and not a defeasible purchase ; therefore, if after lapse of the day, for repayment, the lands conveyed, be sold to a bona fide purchaser, though the' purchase will not be impeached, the gi autor will be entitled to an account, and the sum at which the land was sold; with interest, will be the amount for which he will be entitled to credit, though he did not demand a redemption, for more than six years after the day of repayment. After a judgment, an execution, and sale under a mortgage bond, the court will not open the account on the mortgage, though there be some degree of irregularity ill the accounts, if from the whole, they appear to be fairly closed. Query, if an agreement'1 by a mortgagee, who has bought in the mortgaged premises, to divide with the mortgagor, tlie surplus produce of a resale, after deducting debt and costs, if he will show the best lands, so as to get for the estate a given sum, be a valid agreement; or whether the showing the lands, be a condition precedent; Query.

      THE respondent, by his bill, in the court below~ set forth, that in 1783, he purchased from the appellant a farm, then Iyipg in the county of Albany, called the (Jlabergh, for which he was t~ give 450l. That of this sum he paid, on the purchase, 100l. in money, 25 skepples of wheat, and 8 cwt. of flour, executing, for the residue, a bond and mortgage, dated the 24th of February, 1784, being the day after the date of the conveyance to himself. That the appellant having obtained judgment on the bond, sued out, on the 1st of September, 1789, a fi. fa. directing a levy to be made, for 510/. debt and costs, which was accordingly done. That a sale did not actually then take place, because the respondent, on the 19th of the same month, in order to, obtain a longer time for payment, assigned to the appellant, as an additional security, for the money due to him, class-rights for 1400 acres of land, located at the south end of Cayuga lake, with a power, authorising him to take out letters patent, in his own name ; and the appellant, at the same time, executed to the "respondent, by way of defeasance, a bond for 300l. conditioned, that if the respondent, his heirs, &c. should pay the appellant, his heirs, See. 250l. within one year from the date thereof, then the assignment of the class-rights should be void. The bill then stated, that the appellant, in October, 1790, under an execution issued upon his former judgment, sold the Clabergh farm, and having himself purchased it in, directed the sheriff" not to sell the personal estate of the respondent, as he, the appellant, was fully satisfied. That immediately after, the appellant declared to the respondent, he knew of two persons, who were desirous of purchasing the farm, which he meant to sell, for 500/. and therefore, requested the respondent to show them the best lands, it being his intention to divide with the respondent, the surplus which might arise after payment of debt, interest and costs; therefore, to avoid the expense and trouble of a deed from the sheriff, the respondent, at the instance of the appellant, conveyed the farm to him, in consequence of which, he entered into possession, and sold the property for 50C/. to one Henry Effener, to whom the respondent had, by the appellant’s request, shown the estate. • That letters patent had been obtained by the appellant, in his own name, for the class-right, lands, which were worth 4,000/. The bill then set forth the usual application for á settlement, offering to allow all reasonable costs, &c. if the appellant would account for the proceeds of the sale to Effener, and reconvey the 1400 acres, which it concluded, by praying to be decreed.
    The appellant, by hi s'answer, admitted the purchase of the Clabergh farm, its subsequent sale,.under the execution, and his buying it. in, as alleged ; but the sum directed to be levied, or the amount precisely due, he could not, he said, recollect. He acknowledged also, the assignment of the class:rights, his taking out the letters patent in his own name, the executing- to the respondent, the bond for 300l. conditioned as set forth, and selling the farm to Effener; but he insisted the assignment of the class-rights, to have been in consideration of 100l. therein expressed, and denied that it was made as a security, for payment of the debt due on the bond and mortgage ; or, that he had any communication with the respondent, after the sheriff’s sale, or requested a conveyance ; on the contrary, he averred, that he received a deed from the sheriff, dated the 12th September, 1791; though he acknowledged to have sold in 1796, the 1400 acres of class-rights, to Simeon De Witt, esquire, for 500l. which was the highest price that could then be obtained.

      On the nature of the assignment of the class-rights, whether it was a defeasible purchase, or merely an additional security, as both parties relied on the facts in the bill and answer, neither examined any witnesses. To show, however, an adequacy of price, in the consideration stated in the answer, the president of the senate was interrogated, and he deposed, that in September, 1789, the value of class-rights was from 5 to 10/. per 100 acres. That in 1790 and ’91, he located 13,000 acres, for about 2 shillings per acre. That in 1792, he purchased, for 100 dollars, a lot of 600 acres, more valuable than the class-rights in question, and on which they adjoined.
    To establish the sum due on the Clabergh farm, at the time of its sale, the agreement to divide the surplus, af.er satisfying the appellan*, the subsequent purchase by Effener, and the liability of the appellant, to account for the value, two witnesses were, together with EJfener himself, examined.
    The two first deposed, they were present when the property was sold by the sheriff; that the appellant acknowledged, his original demand was only 500/. from which were to be deducted some payments received; one to the amount of 100/. which had not been credited. That the appellant further said, if the respondent would show the best lands, so that 500/. might be obtained on the resale, he should have the whole amount of what might remain, after discharging debt and costs.

      Effener testified, that the respondent, in consequence of a written request from the appellant, showed him the Clabergh farm, of which he became the purchaser, for 500/.
    Upon these facts, his honor, the chancellor, decreed, “ that the accounts between the parties, re*aian£ to the mortgage, remained closed, the mortgage being satisfied: but inasmuch as it had not satisfactorily appeared to the court, whether the ICO/, proved to have been paid by the complainant, to the defendant, was the consideration expressed in the assignment of the class-rights, for 1400 acres, or another sum of money; and inasmuch as that assignment was considered by the court, as an additional security for the money payable on the mortgage, and made for no other purpose or intent, and inasmuch as the defendant has admitted, that he procured letters patent for the 1400 acres, which he has since disposed of; and as the court was not fully advised, to what measure of compensation the appellant was entitled for the 1400 acres ; his honor directed, that it be referred to a master, to ascertain, when and in what manner the 100/. was paid to the complainant ; what was, on the 1st of December, 1792, the value of the said 1400 acres, and what their value on the same day, in the year 1796, and that a master examine Effener, whéther, at the time he delivered the written request mentioned in his deposition, to the complainant, or at any time afterwards, the complainant showed to him the mortgaged premises, or any, and what part thereof; and that the said master report the proofs taken in the premises, and his opinion thereon, and that all further directions be reserved, until such report shall be made.” From this decree, the case now came up, on appeal, and the chancellor thus assigned his reasons:
    Mr. President. On this case, three questions arise. 1st. Whether the respondent is entitled to an account ? 2d. Whether, to the surplus of the production of the sale, by the appellant, after satisfying debt and costs? 3dly. Whether to a convevan~e for the 1400 acres located, and granted to the appellant, or, a compensation for them ?
    As to the first question, the parties have not made out what was the consideration money agreed to be paid, on the purchase of the farm in question. The respondent alleges, it was 450l. The appellant, in his answer, declares he does not recollect it, and the deed imports it to be 410l. The respondent alleges, that 100l. some wheat and flour, were paid on account, and the mortgage taken for the residue.
    The mortgage is also for 410l. It is, therefore, 'evident, from the written transactions of the parties, that the sum due on the 24th day of February, 1784, the date of the mortgage, was 410l. ; and though the respondent’s allegations are not otherwise to be regarded, if not admitted or verified, than as limiting his claim, if they are admitted to that intent, it appears from his own showing, that the money, wheat and flour, alleged in his bill to be paid in satisfaction of the consideration money, were paid prior to the execution of the mortgage, and, therefore, cannot be received as a credit, on the debt secured by it.
    There is no other allegation in the bill, of a payment made on the part of the respondent, though one of the witnesses swears, that at the time of the sale, the respondent alleged, and the appellant admitted, that a credit had been omitted of 100/. j and the subsequent declaration of the appellant, that he was. satisfied with the product of the sale of the farm, and his direction to stay the sale of the personal pro-» perty of the respondent, appear to have been prompted by the admission of such payment»

      This is strongly corroborated, by the result of the-calculation of the amount of the principal and interest, payable on the mortgage, and the amount of the monies admitted to have been paid in satisfaction, from which it appears, that at the time of the sale, a sum, somewhat exceeding 100/. beyond the production of the sale, was necessary to satisfy the appellant.
    Both parties seern to have conceded, that the debt was satisfied, and the respondent has not pretended that it was overpaid; though, from the irregular mode in which the business was conducted, the precise manner in which it was effected, cannot be satisfactorily developed, nor does it appear to me necessary to attempt it; for there is ground, in my opinion, to consider the account respecting the mortgige as closed, excepting only as to one item, which requires some further examination.
    The 100/. which the respondent alleged he had paid, and the appellant admitted to have been paid, rests merely on those declarations, made at the time of the sale of the farm. No receipt has been produced ; no circumstance disclosed, from which the time and manner of the payment can be collected. Connecting these considerations with the manner of adjusting the class-rights, some doubts are excited in my mind, whether the 100/. so paid, is not the sum described as the consideration money in the assignment of the class-rights.
    To elucidate this point only, and not to open the account on the mortgage, I think it a proper object of reference to a master.
    As to the second point. Whether the respondent is entitled to the difference between the purchase and sale price of the farm t

      Here the respondent has limited his demand, by his bill to one half; the evidence would entitle him to the whole, if to any thing.
    That the appellant promised, that he would divide such difference with the respondent, is not positively denied by the appellant in his answer ; and, it has been proved by two witnesses who were present, and swear to the conversation. But they declare that the promises were made on the condition, that the respondent should show “ the best of the land,” to persons disposed to become purchasers, so as to enable him to sell it at 500/. It is proved that the appellant sold the land for 500/. But though there is proof, that the appellant required the respondent to show the farm, by a letter delivered to him, by Henry F.jfener, the person who afterwards purchased it, there is no evidence of a compliance with that request.
    The result expected to be produced by the respondent’s showing the farm, was actually produced by the-selling it for 500/.; but it is not ascertained whether he did, or did not perform the act, which entitled him to the benefit of the appellant’s promise. If he did not, I can discover no ground, on which I can decree its performance, for the showing the land, was in the nature of a condition precedent. The delivery of the letter containing this request, and the subsequent purchase of the farm, by the bearer of it, for the sum fixed by the agreement, I think, however, raises that kind of presumption that the service was actually performed, which will warrant a further inquiry out of the ordinary course; 1 therefore, also, re* ferred it to the master to inquire, whether the respondent showed the farm to Henry Effener, in consequence of the letter, or at any other time before, or after it was written.
    I further stated, Mr. President, that I should have no objection, on the coming in of the report on this subject, to'hear the parties, on the regularity of this last point of reference, if either of them, from its nature or object, supposed it not in strict unison with the course of proceeding in the court below.
    As to the third point. I have little doubt, that the assignment of the class-rights, was made under the pressure of an execution without an advance of money on account of the purchase ; for the appellant does not pretend it in his answer, and the nature of the transaction forcibly repels any presumption arising from its acknowledgement in the assignment. But whatever the intent, all the circumstances attending it indicate, that, equitably construed, it can only be considered as an additional security. The bond speaks a plain language. It contains a clause in the condition, that if 250/. were paid in one year, that then, not only that bond, but the assignment should be void. It was coupled with a forbearance for one year, and for this forbearance, 150/. was exacted, beyond the legal interest, if the respondent should have it in his power to redeem, at the expiration of that period. I am, therefore, very clear, that the doctrine of conditional purchase-right is wholly inapplicable, and that the appellant ought to respond for the 1400 acres of land located.
    If this land had not been alienated, the appellant having become a trustee, for the respondent, so soop as the grant to him was perfected, a conveyance of it to the respondent, would, I think, under the circumstances of this case, be a thing of course. But the appellant alleges that he has sold it; and, as it is not pretended that Mr. De Witt, the grantee, had notice of the trust, the conveyance to him must be considered as valid, and hence it may become a question of some difficulty, what ought to be the measure of compensation.
    As then advised, I incline to think, that the period at which the land ought to be valued, was the time of the demand, which is stated to have been in 1796, though the sale was made in 1792.
    Without, however, giving an opinion on this subject, I ordered it to be referred to a master, to ascertain what was the value of the 1400 acres of land, at both those periods, but if any improvements had been made thereon, exclusive of such improvements and the sum expended by the appellant, in obtaining the letters patent therefor.
    The question respecting the validity of a sale of an equity of redemption, which was urged in the course of the argument, is settled, I conceive, by the respondent’s own showing, that he confirmed the sale by a subsequent conveyance.

      Lush, for the appellant. This case presents two questions. 1st. Was the respondent entitled to one half of the surplus, if any, on the sale to Effener, of the Clabergh farm? 2d. Was the conveyance ' of the class-rights, a defeasible purchase, or a mortgage ?—On the first point, it is evident, there was no surplus in fact. A short statement will show this.

      February 24th, 1784, there was clue 4107.
    Interest to the 19th September, 1789 1597. 18
    Due the appellant on that day 5697. 18
    Deduct then paid 1007.
    Balance remaining 4697. 18
    Add interest from thence to the day of sale SI l.

    Poundage and costs - J 177,
    Due on the Clabergh farm when sold 5177. IS
    It is, therefore, clear, then, that the above sum, and not 374l. only, was justly owing to the appellant, when the property was brought to sale. The price, therefore, paid by Effener, could not yield a surplus. But allowing that there was one, still the appellant would not be bound to pay it over. His declarations, that are now relied on, and endeavoured to be turned against him, were made in the unsuspecting goodness of his heart, and without any consideration. They amounted to nothing, and can be considered but as a nude pact. It may be said, that a very trifling thing will be sufficient to raise a consideration, and for this, the authority of 1 Pow. on Cont. 342, 3, may be cited. But he does not seem to have apprehended the cases to which he refers.—■ They merely establish, that where a consideration has passed, a very little will amount to an acknowledeanent. Thus, in the decision from Croke,

       A. demised to B. and B. assigned to C. who promised A. to pay the rent due, if he would produce to him the deed by which it w~s reserved. A. showed him the deed, and held that he was bound. So in that from Dyer, the defendant had received 50l. front the debtor of the plaintiff, and when called on for it said he was not at leisure, but would pay it at another day. To make a contract valid, both parties must be bound. Here the respondent was not, for he never assented. Upon this principle, therefore, the contract was null, and though a surplus had arisen, it could not have been recovered.
    The mere inspection of the assignment, is sufficient to determine the second question, and evince it not to be a mortgage. . It has not one single feature belonging to such instruments. There is no loan of money in it; no stipulation for repayment; no covenant; no remedy upon it. These are necessary ingredients, to create a mortgage. The first is peculiarly essential. A defeasance cannot be presumed; for the English practice on this point is unknown to us. Nothing can be argued from its not appearing that the assignment was ever recorded; for, when it was executed, class-rights were choses in action. There is one circumstance, which seems •conclusive in ascertaining the nature of the deed. The appellant was empowered to take out the letters patent, in his own name, and thus enter on the land. Had the instrument been intended to operate as a mortgage, thiswould not have been done; for under that species of security, the mortgagor always remains in possession. This departure from general usage, shows a mortgage was never intended. The determinations in Jason v. Eyres, 2 Ch. Ca. 33. Howard v. Harris, 1 Vern. 33. Willett v. Winnell, ibid, 488, and Jennings v. Ward, 2 Vern. 520, which may be adduced, as strong cases of redeemability against the tenor of deeds, do not apply. They only settle the rule of, once a mortgage, and ever a mortgage. But Cotscrell v. Purchase, Ca. temp. Talbot, 61, goes the whole length of the case before the court. It was there held, that an absolute conveyance, accompan‘ec| wp:¡1 possession, will not easily be presumed a mortgage, though there be an incongruous covenant-in it. In Ensworth v. Griffith, 1 Bro. Pa. Ca. 149, a purchase of an equity of redemption by a mortgagee, though accompanied with a written memorandum of an agreement to permit a redemption, was, after a lapse of the day, ruled to have become absolute, and principally on account of the full worth of the estate having been paid. This circumstance is exactly analogous to the ground of the appellant’s claim. Barrell v. Sabine, 1 Vern. 268, shows the distinction between a conditional purchase, and a mortgage. The first requires a strict adherence to the day limited for the repurchase, because lending and borrowing, is not the basis of -the contract, and, therefore, though the value of the property was greatly enhanced, and there was a clause to restore, On repayment, on the day appointed, the court refused to direct a reconveyance, as the sale was absolute. The same principle is found in Ftoyet v. Lavington, 1 P. W. 268. But the case most like the present, is Tasburgh v. Echlin, 4 Bro. Pa. Ca. 142. There, the sum of 200l. lent on a proviso, similar to that in the assignment of the class-rights, was, merely because there was no covenant for repayment, held to be a conditional purchase, and a redemption denied though the value of the estate was 900l. per annum, and the lender had himself filed a bill, praying a redemption, or foreclosure.— With this train of adjudications, therefore, in sup, port of the appellant’s title, there can, it is presumed, be little doubt of a reversal.

      Van Vechten, contra.
    The agreement to divide the surplus, that might be produced from the sale of the Clabergh farm, is proved by the testimony of two witnesses. It remains, therefore, only to show that there was a consideration for such agreement, and that a surplus did arise. To create a sufficient consideration, the mere showing the lands would suffice, and Effener himself proves that it was performed. In support of there being an actual surplus, we have only to advert to the declarations of the appellant himself. When the land was struck off to him in October, 1790, for 340l. he acknowledged himself to be satisfied, and he afterwards sells for 500l. This, then, must have left a surplus, of the half of which, he instantly became, under the agreement, trustee for the respondent, and of course, liable to account. As to the assignment of the class-rights, the circumstance of its being given, under the pressure of an execution, merely to have a further indulgence, shows it to have been no more than a further security for the original debt; and redeemability, of course, a necessary incident. The defeasance with which it was accompanied, still further elucidates this idea, and corroborates our position. It is a settled principle, in equity, that every contract for the securing of money is a mortgage.— 1 Pow. on Mort. 146. Therefore, though the condition of a mortgage be to redeem during the life of the mortgagor, the heir will be entitled to redemption. Killvington v. Gardner, 1 Vern. 192. Absolute conveyances, accompanied by defeasances, in separate deeds, are, by our statute, considered as mortgages, and directed to be registered as such. 1 Rev. Laws, 481, sec. 3. The case of Manlove v. Ball and Bruton, 2 Vern. 84, goes the whole length of the one before the court. There, in con~ sideration of 550l. an absolute conveyance was made of a church-lease for three lives. The grantee executed a separate instrument, by which he agreed, on payment of 600l. within a twelve-month, to reconvty. The 600l. were not paid. Yet a redemption was allowed after the expiration of near 20 years, and though the defendant had twice renewed the lease, on the dropping of two of the original lives. The mere lapse of the day of payment never works any injury, where there was an original redeemable interest. Exton v. Greaves, 1 Vern. 138. Croft v. Powel, Com. 603. Even a fine and non-claim for five years, creates no difference. Rowell v. Walley, 1 Ch. Rep. 218. Welden v. Duke of York, 1 Vern. 132. In Stanhope v. Thatcher, Prec. Ch. 435, an estate-tail created for the security of a sum of money, and even the fee subsequently acr quired by a recovery, were held, in equity, to amount only to a mortgage, and defeasible on payment of the money due. In viewing this case it is to be remembered, that redemptions are favoured, and defeasible purchases discountenanced. Howard v. Harris, 1 Vern. 191. The appellant might have treated the assignment as a mortgage. It must, then, be equally so with respect to the respondent; for it cannot be a mortgage on one side only.
    Henry, in reply, insisted, that however good such an agreement as that to divide the surplus of the Clabergh farm might have been, if assented to, it could not prevail between the respondent and appellant; because the former, by refusing to reconvev, and driving the latter to the necessity of receiving a sheriff’s deed, had destroyed all mutuality. To establish no surplus, he relied on the statement made by his associate counsel in opening. He admitted the general rule, as to the redeemability attached to mortgages, but contended that defeasible purchases were an exception to it, as they did not rest on a borrowing and lending, and the mere agreement to permit a repurchase, of such an interest as a class-right, which was only a chose in action, could not, he said, operate as a mortgage.

       Sir Anthony Sturlyn v. Alban, Cro. Eliz. 67.

       272 b. n. (32) Gilbert v. Ruddeard.

         Act concerning mortgages.

   Per Curiam, delivered by Kent, Ch. J.

It will not be requisite to recapitulate minutely the facts in the cause, but I apprehend it will be sufficient to state the points that have been. raised for our consideration, and to apply the material facts to those points, as we proceed to discuss them.

The appellant contends that the decree is erroneous. 1st. In making the proceeds of the sale of the Clabergh farm any basis for an account; and, 2d. In allowing the respondent a right of redemption as to the assignment of the class-rights, for 1400 acres of land.

1st. The accounts between the parties relative to the bond and mortgage, do not appear to have been kept with much regularity or precision, and it would be difficult, from the facts before us, to make an accurate liquidation of those accounts. Nor do I think it necessary so to do, for I agree with the court below, in the propriety of considering the accounts relating to the mortgage as closed, and that the mortgage is to be considered as satisfied. It is equally needless to determine, whether the agreement to divide the surplus monies arising upon the sale of the farm (if any such agreement was made) be valid and binding upon the parties, for 1 am satisfied there were no surplus monies to divide. rfhe balance due upon the bond at the time of the sale must have amounted to 500l. and upwards, the sum at which the farm was afterwards sold to Effener, and that, too, after allowing as a credit, the sum specified, as the consideration of the assignment of the class-rights. With respect to that consideration, I think it clear, that it" was not created by the advance of cash from the appellant to the respondent. The answer of the respondent does not pretend it was, and this must be the sum which the appellant, at the time of sale, admitted, ought to have been credited on the bond. The assignment, therefore, of the class-rights, must have been taken by the appellant, as equivalent to the payment of 100/. upon the bond.

This brings me to the consideration of the second point. Whether the respondent be entitled to redeem ? I consider the assignment of the class-rights as being intended by the parties to operate as the payment of 100/. on the bond and mortgage. • It was not given, or accepted, absolutely as cash, but as a security for the payment of so much of the antecedent debt, and, therefore, I entirely agree with the chancellor, that it is not to be considered in the light of a defeasible purchase, but as an additional security for a part of the pre-existent debt, and to which the right of redemption was necessarily attached. I entertain a full persuasion that this is a just solution ; the real truth of the transaction. The internal evidence of the case is, to my mind, conclusive as to the fact. I have no doubt that this mode ~f securing the payment of 1OOl~ in part satisfaction of the execution, was the, cause why proceedings under the execution, were staved from Sep temler, 1789, when the assignment was made, until September, 1790, when the respondent made default in the redemption of his class~rights. I am of opinion, therefore, that a right of redemption most justly and equitably attaches to this case~

The few cases that are to be met with, of defeasible purchases, and in which the equity of redemption is said to be destroyed, after the limited time, by agreement of the parties, are cases in which there was a great lapse of time between the forfeiture and the application to redeem. Floyer v. Lavington, 1 P. Will. 268. Ensworth v. Griffith, 1 Bro. Pa. Ca. 149. Tasburgh v. Echlin, 4 Bro. Pa. Ca. 142. 1 Pow. on Mort. 4 Ed. 169 to 184 ; and Mr. Powell admits, in page 183, that the intention of the parties must be clearly proved, or necessarily implied, otherwise they will not be taken out of the operation of the general rule. The intention of the present parties, is so far from appearing to make this assign- • ment a defeasible purchase, as contradistinguished from a collateral security for a debt, that it is manifest, from a review of the case, that the assignment was made to secure 100/. as part of the bond, and by that means the respondent obtained the indulgence of another year to meet the execution.

My opinion, therefore, is, that the decree is correct, in attaching the right of redemption to the interest assigned, but as the 1400 acres have since been sold by the appellant, and, as we must intend, to a bona fide purchaser without notice, the only question is, as to the measure of compensation which the respondent is entitled to receive.

It will be perceived, from the view I have taken of the transaction, that the respondent is not entitled to redeem, without paying to the appellant the 100/. with interest from the date of the assignment. That sum, therefore, must be deducted, from the amount of his compensation. The only point of any difficulty, is that of settling the time at which the value of the 1400 acres, is to be computed. If the appellant had retained the lands till 1796, when the respondent demanded a release of them, he would have been obliged to restore the lands, or their then value, exclusive of improvements ; but he had previously sold them to a third person for 500/. which he states to have been the highest price which could .be obtained, and that when he sold them, he did not suppose the respondent had, or pretended to have, any claim to the lands. As the respondent assigns no reason why he layby till 1796, T incline to the opinion, that, under the circumstances of this case, the price that the appellant procured for the lands, would form the most ¡equitable rule of computation. He appears to have sold the lands, under a belief that they were absolutely his.

My opinion accordingly is, that the appellant be decreed to account to the respondent for 500/. being the sum for which he sold the 1400 acres, together with interest from the time of the sale, which was on the 1st December, 1792, and costs both in this court and the court below, and that the appellant be allowed against that sum 100/. with interest from the 19th of September, 1789, and that the court below, be directed to execute this decree, and that the decree below, be, in all other respects, reversed.

Judgment accordingly.


author: Per curiam, delivered by Spencer, J.

text:
    William and George Taylor, Appellants, against Ann Delancy, Respondent.

    The irro~at~ has a discre~. tionary power to elect out of those of the nest of kin to an intestate, any one in a~ equal degree, and grant to such person, sole adminis~ tratiOfl.
    ON appeal from a decree of the judge of probates, on the following facts.
    John Taylor died intestate, leaving a widow, three sons, William, George and (Jizarles, and three daughters, Ann, the respondent, Phcebe and Mary. The widow having renounced the administration, the two daughters, Phcrbe and Mary, unitt~cT with their husbands in petitioning the surrogate to appoint Ann sole administratrix, she being the eldest child. Against this, William entered a caveat, claiming a right ttx Lv joined with her, which she denied. Whilst the caveat was pending, the four other children presented to the surrogate an ex parte paper, stating as objections to William, 1st. That he was so much engaged in commerce, as not to have time to attend to the estate. 2d. That the family could not, at all times; have access to him, which, if he was an administrator, would be inconvenient. 3d. That he ivas at variance with the other branches of the family, and his temper such as to promote discord rather than harmony. 4th. That they were persuaded, it would be his object and interest, to delay a settlement of the estate. 5th. ' Because the law does not favour joint administrations.
    The surrogate, under these circumstances, decreed administration to be granted, exclusively, to
      Ann.- From this, William appealed to the judge of ’ probates, and on the proceedings being transmitted, George petitioned to be united with any person, to whom the administration might be granted. His honour, having affirmed the decree of the surrogate, directed sole administration to Ann, on which, the case xvas now brought before this court.

      Henry, for the appellants. This case brings up two questions. 1st. Whether a surrogate has a discretionary right to elect, among persons in equal degree, to whom he will commit administration ?— 2d. Whether, Admitting diis discretion, it has, on the present occasion, been duly exercised ? To determine the first point, it will be necessary to investigate the origin of the power, now conferred on the surrogate, in granting administration ; to trace from it its common law source, to the statute provisions in F-nglmd, and mark the diversity in them, from the act of our legislature on the subject.
    Antecedent to parliamentary provisions, the king, in cases of intestacy, as parens patr'ue, xvas entitled to the goods of the deceased, in order to defray the expenses of his funeral, discharge his debts, and apply them, to the benefit of his wife and children. If there were none, those goods, as a branch of the royal prerogative, constituted a part of his revenue, which he obtained possession of by his ministers, and most probably, through the medium of the county courts. At length, through the influence of ecclesiastical persons, the administration of intestates’ effects xvas granted to the ordinary, who, after giving one-third to the widow and children, xvas imagined to dispose of "the residue, or dead man’s part, in ¡ños nsus, for the benefit of his soul. The abuses, however, of the clergy, called for legislative interposition, and it was by the 31 Ed. 3. c. 11, enacted, that the ordinary should grant administration to the “ next and most lawful friends” of the deceased. This was construed to mean such of the next in blood, as did not labour under legal disabilities. What those were, are specified in Hensloe’s case, 9 Rep. 39, and Toiler’s law of Exe. 66. But the ingenuity of the churchmen attempted to narrow this right, by choosing from among those of the next of kin, him who would purchase the favour, or be most obsequious to them in the distribution. This power of election being a doubtful right, the 21 Hen. 8, c. 5, was passed, to confer it. By the words of the statute, the ordinary is empowered to grant administration to the widow or next of kin, or both “ as by the discretion of the same ordinary shall be thought good. And in case, where divers claim the administration, which be in equal degree of kindred to the person deceased, and where any person only desireth the administration, as next of kin, where, indeed, divers persons be in equality of kindred, as is aforesaid ; that in every such case, the ordinary to be at his election and liberty to accept any one or more making request, where divers do require the administration.” This statute is, by Blackstone,

       termed an enlarging act. It was passed to give privileges to the church, and confirm that power of election, which they before used, though with some degree of distrust, of nominating the most pliable of the kindred, to the administration, It was a boon to the ecclesiastical order. It was the abuse of it which induced the statute of distributions to put an end to those frauds which had been practised under the former laws. After this plain history of the right of eleci tion in the ordinary to exclude some and prefer others to the office of administration, can it be argued that it was bestowed to avoid the inconvenience of joint administrations ? It is not the result of common law principles,' but the effect of positive institution; and if our act does not bestow the same, discretion, it cannot exist. The words made use of by our legislature are, that administration of the estate of any person dying intestate, shall be granted “ to the widow, or next of kin of the intestate, or some of them, if they, or any of them, will accept the same.” These expressions do not vest the surrogate with a discretionary power to elect one of the next of kin solely, and in exclusion of those who “ will accept the same.” The sentence, if at full length, would read thus, “ to the next of kin if they will accept the same, to some of them, if any of them will accept the same.” Therefore, if áll in the- same degree accept the administration, the surrogate must grant it; if, indeed, all do not. choose to accept, then he may grant to some. The law is mandatory, and does not allow of any discretion. That this was the intention of those who framed and revised it, is evident, from comparing the phraseology of the old act, with that of the present day. By the former, the ordinary was empowered to grant administration '“to the widow or next of kin of the intestate, or to some, or one of them, if they or any, or cit/thr of them will accept the same. "

      No such words are to be found in our amended code, and it is not to be presumed they were rejected without reason. The sixth section of the act now in force, corroborates our positions. For it requires all the next of kin to be cited, in case any other person should apply for administration. Why cite them if all were' not entitled ? No inconvenience can arise from the bonds required, because each administrator is allowed to find his own separate suretxx— As to the second point, we surely are justified in saying, though the surrogate may be entitled to .the discretion he claims, he has, in the instance now before the court, abused it. Our system allows, it is true, to its judges, the exercise, in some instances, of their discretion ; but then it must be such a one as is sound and lawful, not arbitrary and capricious. Therefore, if once duly made use of, it can never be revoked, and administration granted to another ; for that would be arbitrary.— 11 Vin. Abr. 114. pl. 10. (n.) Men, and even a mercantile character, have been passed by, to grant administration to a woman, whose education and very sex must be against the appointment. This last circumstance has been said, of itself, to be an objection, because, “ she may marry, and so put herself and her goods under the power of another.” 12 Mod. 619. Should the court be of opinion with us, they will, therefore, grant the administration, as we suggest, to all who will accept; for, in cases of this sort, when the decision appealed from is set aside, the inferior tribunal is ousted of its jurisdiction, and the court which reverses, shall grant administration de novo. Reeve v. Denny, 11 Vin. Abr. 76. pl. 12.

      Harison and Van Vechten contra.
    The rights of the appellants rest entirely on our statute provisions, and it is, therefore, unnecessary to travel back into the remote periods of ecclesiastical abuse. Antecedent to the general repeal of the English acts of parliament those of Ed. 3. and Hen. 8. were in use here. When they were abrogated, it was not from any view inimical to their spirit, but to adopt the same principles under an act of our ovi n. The existing act of the legislature is to be expounded according to the reason of the antecedent law, and never to be construed to repeal, further than that reason will justify. The discretion now practised by the surrogate has been sanctioned by a usage of years. Nothing but a clear intent ought, therefore, to abolish it, instead of the constructive alteration which the counsel for the appellant has laboured. By beingauthorised to grant to some, the surrogate is necessarily empowered to refuse to bestow on all. The words of the law clearly mean, that he may grant administration, to any, or any one of those who are next of kin, or to any one of them who will accept the same. When we look at the former law, which it was not intended to depart from, we can easily perceive that the “any” must signify any one, at his election. This power of election is indispensably necessary. Persons next of kin may be under disabilities, which would render it almost criminal in the surrogate not to reject. They may be bankrupts, or largely indebted to the intestate. Without a discretion, therefore, he could not do justice to the estate. But that appointing a woman should be an abuse of it is rather singular, when the legislature, in the case of a widow, direct it to be given to her. If we are correct in our idea of a dis«retionin the surrogate, the appeal cannot be maintained. From the use of discretionary powers there is none. It is contrary to theirnature. On applications for new trials, setting aside defaults, rehearings in chancery, allowing or directing informations in the nature of a quo xvarranto, no exception can be taken, or writ of error brought. They may, indeed, be subjects of criminal proceeding, by indictment or impeachment, but never can be the groundwork of appeal or error. The argumentum ab inconvenienti is conclusive against the right. An instance has very lately occurred in the city of JYexvYork of a death where the next of kin consisted of 150 persons, all in the same degree. This alone is sufficient to affirm the decree below.
    Pendleton, in reply. We must construe the clause in our statute distributively. To the next of kin, if they will accept, or some of them if they will, or any them if they will accept the same. It is a positive law, and however inconvenient, it is not with this, or any other court, to repeal it.

       2 Comm. 496.

       22 & 23 Car. 2. c. 10.

       1 Rev. Laws, 318, sec. -5.

       Gain's folio edition.

        Blackborough v. Davis.

        Rev. Laws, 858. sec. 28.

   Per curiam, delivered by Spencer, J.

The appellants’ counsel have insisted, 1st. That under the 5th section of the act, relative to the court of probates, the office of surrogate, and the granting of administrations,” there is no discretion vested in the surrogate, to select one of the next of kin in equal degree, where they all request administration, and are under no legal disability. 2d. That in this case, if such discretionary power is given by the act, it has been so exercised as to require correction by this court.

The only legislative provisions on the subject, are to be found in the acts of the 14th of February, 1787, and the 27th of March, 1801. The former of these statutes directs, “ that where any person dieth intestate, the widow, or next of kin, or any of them, of the deceased person if they, or either of them, will accept the same, &c. shall be deputed.” The latter statute ordains, “ that administration of the goods, and chattels, and credits of any persons dying intestate, shall be granted to the widow, or next of kin of the intestate, or some of them, if. they, or any of them, will accept the same.” These acts are of the description of revised laws, and if. susceptible of doubt in their interpretation, resort must be had to the law existing antecedently. By the constitution, the British statute of the 21st Hen. 8: regulating the granting of administrations was adopted and recognised as the law of the state. The 35th article of the constitution, ordains, that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony, as together did form the law of the said colony, on the 19th of April, 1775, should be and continue the law of this state, subject to such alterations and provisions as the legislature should from time to time make concerning the same. The statute of the 21st Hen. 8. became thereby the law of the state, and the 5th chap. 3d and 4th section of that statute in express terms, gave to the ordinary a right to accept one or more administrators when there was an equality of kindred, according to his discretion. The re-visors of the laws in-1787, well knew that this statute vested a discretion, and still we find no terms made use of negativing that discretion, or purporting to change the law. So far from this, it appears to me that the words “ or any of them,” in the act of 1787, if they were now to receive a construction for the first time, confer a discretion on the surrogate. My opinion is foiinded on this proposition, that where the law, antecedently to the revision was settled, either by clear expressions in the statutes, or adjudications on them, the mere change of phraseology shall not be deemed or construed a change of the law, unless such phraseology evidently purports an intention in the legislature to work a change. A contrary construction might be productive of the most dangerous consequences. The quaintness of expression in some of the ancient British statutes, the circumstance of there being several statutes on the same subject, required in many cases, an entire change of language, but it has never, until now, been contended, that thereby an alteration of the law was to be inferred.

If this was a case wholly depending on the statutory provision, of the act of the 27th of March, 1801, (and to this as a revised law, the same observations are applicable, as have been made in relation to the statute of the 14th of February, 1787.J I should incline to the opinion, that the words, “ or any of them,” would vest a discretionary power in the surrogate, of making an election between those in equal degree. If, however, the words are doubtful, arguments from inconvenience would have a decisive and conclusive influence. Nothing could be more absurd than to require the surrogates to confer the right of "administering on all who are next of kin, and who may" desire it, when their numbers, their residence, their personal qualifications would, in prudence, require their exclusion. I am, therefore, clearly of opinion^ that the surrogate had a discretionary power of selecting one to the exclusion of others, by which I mean a sound legal discretion not founded in. whim or caprice. .

As to the second point, whether the abuse of discretion is a ground of relief here. I am not disposed to say, that there may not be cases where the exer-cise of a discretion in an unjust and illegal manner, would not be re-examinable and relievable. Of this there may be a doubt, and in the case of Preston and others v. Ferrard, 2 Bro. Pa. Ca. 179, the house of lords affirmed the chancellor’s order, 'on the ground that the act of 2d of Anne, had conferred on him a discretionary power to appoint guardians to the children of Romam Catholics. Without expressing a decided opinion on this point, it appears to me that the present case furnishes no facts from which the court can perceive an abuse of discretion. It is to be intended, that all decrees, solemnly pronounced, are just, until the contrary appears. The surrogate may have had good reasons to guide his discretion, of which we are not connusant. Neither of the parties, from any proofs in this cause, appear liable to any objection, except that the respondent is a female ; and this has been urged as one. It is a sufficient answer, to say, that the statute makes no discrimination as to the sexes ; and certainly, the court cannot consider that an objection, which the legislature have not. In my opinion, the decree appealed from ought to be affirmed.

Decree of affirmance,


text:
    Paschal N. Smith, President of the Columbian Insurance Company, against William Bell, Joseph Bell, and Samuel Watson.
    To constitute a technical total loss of a ship, by damage, from the perils insured against, she must be injured to the amount of half her value, or more, after deducting the one-third, new for old, allowed the underwriter ; that is, she must be injured to the extent of three-fourths of her value, or more.
    IN error, upon a bill of exceptions, tendered and sealed on the trial of this cause, at the circuit court, in the city of New-York, in which the now defendants were plaintiffs.
    The action was on a policy of insurance on the ship Mary-Ann, valued at 14,000 dollars, “ at and from Charleston to Glasgow, and at and from thence to Philadelphia, or one other port in the United States.” The plaintiffs went for a technical total loss, in consequence of the vessel’s having been stranded on the coast of Scotland, and injured to an extent, which required 7,221 dollars to repair. They gave in evidence a subsequent sale of the vessel at Greenock, on account of those who might be concerned, the purchase by the firm oí. Archibald Campbell Co. and her reparation at an expense exceeding half her value. The defendants relied on their having paid into court the sum of 5,100 dollars, contending, that as the amount of expenditure for repairs, was only 7,22Í dollars, and they were entitled to a deduction of one-third, new for old, they were chargeable with only 4,884 dollars 32 cents, which, not amounting to half the value of the vessel, could not constitute a technical total loss. That, therefore, as they had paid into court, 5,100 dollars, the verdict ought to be in their favour, it being the law, that the allowanee of one-third, new for old,, should be made, before the right of recovering as for a total technical loss, on account of damage sustained under the policy, could arise.
    The judge, however, at nisi prius, thinking otherwise, the verdict was, under his direction, given for the plaintiffs, and the case now came up on this single question ; whether the underwriter on a ship is liable for a total loss, when the injury she receives from the perils insured against, deteriorate her more than half, without deducting the one-third, znew for old; or, whether the one-third, new for old, must not first be allowed the insurer, and the injury, after that deduction, amount to the half her worth, or more ?

    The determination at nisi prizes, was founded on a decision of the supreme court, in the ca.se of Dupuy v. United Insurance Company, in which, from the notes of Kent, Ch. J. it appears the court ruled to this effect.
    Where the repairs are equal to half the value, and more, the insured have a right to abandon. The rule is general, and has no reference to the distinction of new for old. It is the actual expenditure, or damage which is taken into view, and on the abandonment, the insurer has all the benefit of the repairs. The rule of deducting one-third, new for old, can be applied only in a case of partial loss. Here there was a clear case for abandonment, and the plaintiff must have judgment.

       There is some uncertainty as to this in the printed case. The first page states it to be an open policy ; the second, that “ in and by'? the policy, she was “ valued at,” &c.

       I was not present at the argument.

   Per curiam, delivered by Lansing, chancellor.—

On this case, only two questions are presented for the consideration of the court. 1st. Whether, on a policy of insurance, on the estimate of repairs of a vessel, injured by any of the perils insured against, new materials substituted for the old, do not entitle the insurer to an allowance ? and if so, 2d. At what period is the allowance to be admitted ?

These questions are open here. They must, in a great measure, depend upon general reasoning, drawn from the nature of the contract of insurance) and that reasoning may be comprised in very narrow limits.

The vessels employed in commercial enterprises, are of various degrees of strength and durability, and more or less adapted to resist the perils of the seas ; but the lowest grade in which they are recognised, as subjects of insurance, is when they are barely seaworthy.

The hull, masts, sails and rigging of a vessel may be in a situation to constitute her seaworthy, and yet be much inferior to what they were when they came from the hands of the workmen who constructed them; and a regular gradation may easily be conceived between a vessel perfectly new, well-built, rigged and furnished, and one that is barely seaworthy. When an injury is sustained by a vessel of the latter description, and it becomes necessary to supply her old masts, timbers, sails and rigging with new, it is evident that in all these particulars, she must, in most instances, be placed in a better state by the repairs, than she was before the injury received, the ordinary wear and tear not being within the purview of the policy. Hence, the repairs are carried to a point beyond the mere reinstatement of the vessel, and beyond the indemnity intended.

In the case of Da Costa v. Newnham, determined in the British court of King's Bench, since the revolution, the usage which obtained with respect to the repairs of allowingone-third, new for old, seems to have been acknowledged, and it is now urged in argument, that at any rate, whether or not the defendant was entitled to this allowance, was a question for the jury, as it depended upon usage.— Butter, justice, speaks of it as a usual .allowance, and Ashhurst, J. observes, that the allowance of one-third of the repairs, is the rule, where the ship is repaired and delivered over again to the owner, for his benefit. That case arose, on a technical total loss, which the insured did not avail himself of, by abandoning. The recovery was for an average loss of upwards of eighty per cent. The ship had been repaired at the instance of the insurers. They refusing to pay for the repairs, a bottomry bond was executed on the vessel, in consequence of which, she was sold to satisfy the debt.

It was contended that the value of one-third of the repairs ought to be deducted, and the answer to this, which appears to me conclusive, was, that the repairs, having added to the value of the vessel, must have been compensated for, in the sale, on the bottomry bond, and the owners never had the ship, so they could not be the better for the repairs.

From the expressions made use of by the judges, who decided this case, it does not appear that they relied upon the usage of any particular trade ; but upon the usage of trade generally; and as there is no power on earth, to enact positive regulations for the wide extended regions of marine enterprises, general usage, established from the principles of general convenience, and sanctioned ~by the experience and practice of merchants, is the only source of general maritime law.

The rule that constitutes the loss of more than one-half the value of the subject insured, a total loss, is a positive one, originating in the convenience of having a determinate and precise test in all cases, which, by its universality and uniformity, may render inquiries into minute objects, rather calculated to perplex than to elucidate, unnecessary.

The precise difference between the value of the old and new materials, must generally be difficult to ascertain. That difficulty is much increased, by the estimate necessarily required of the value of the old, at the home port, and of the new, at the port of repair. It is, therefore, desirable, to have some invariable standard, not calculated, for that is impracticable, to meet precisely all the variety of cases, which may occur, so as to render exact justice in .each ; but such a rule as will nearest approximate to producing that effect, if generally applied. That effect, if a rule respecting the subject is to obtain, it was not contended, might not be produced in the pro. portion alluded to in the case of Da Costa v. Newnham. From the nature of the contract of insurance, I think the allowance for replacing the old materials, with the new, is reasonable and proper; and, if so, that, as the deduction is professedly made, on the principle that the value of the subject insured, has been-enhanced to that amount, that deduction ought to be made, before the test of technical total loss or not is applied; for the doctrine of technical total loss is expressly founded on the position that the subject insured, has been deteriorated more than one-half.

I am, therefore, of opinion, that the judgment of the supreme court be reversed.

Judgment of reversal.

       2 D. & E. 407. 413. 411.