source: Caselaw Access Project

author: *Thompson, J. Radcliff, J. Kent, J. Lewis, Ch. J. Livingston, J.

license: Public Domain

text:
    Barnewall against Church.
    A general policy, unaccompanied with any warranty, covers war risks of all kinds and of all countries. Under such circumstances, a false clearance ia immaterial, and need not be disclosed. Seaworthiness is always implied, and not at the risk of the underwriter.
    Weight of evidence.
    This was an action for a total loss, by perils, of the sea, under a policy of insurance on the ship Hope, valued at 8,000 dollars and dated the 28th of December, 1799, “at and from Kingston, in Jamaica, to Honduras, during her stay there, and at and from thence to Hew York.” It appeared that in April 1789, the plaintiff, wishing to purchase the vessel in question, employed two shipcarpenters to examine her, which they did in every part. They bored her timbers fore and aft, near and between the chains, bends, transom, breast hooks, apron, and in other places, found her perfectly sound, and very strong. They reported her bottom to be of English elm, which never decays under water. That she was collier built, about nine or ten years old, and would last 40 or 50 years. That she seemed as sound as a Connecticut vessel of two years old. Her iron work was good, her bottom perfectly sound, her bends doubled, the first at least five inches thick, her knees not started, but well fastened, and the chain bolts forelocked.
    On this representation, the plaintiff bought her, and expended about 6001. in repairs. Whilst these were comuleting, some of the timbers were perceived to be tainted, and some of the planks in her waist defective; the first were mended, and the latter removed.
    After this the vessel sailed from Hew York, where she was purchased, to Kingston in Jamaica, from whence she sailed on the voyage insured, and arrived safely at Honduras. On her passage from thence to Hew York, she sprung a leak, was obliged to bear away for Honduras, which she reached in a very disabled state, and was, after a survey on her duly held, condemned asfenot seaworthy. From two protests of the captain, which were read in evidence by consent, it appeared that the vessel soon after "x"she left Honduras, experienced some heavy [*218] gales, but not such as to oblige him to strike top-gallant-masts, and hand his top-gallant-sails, though she, at this very time, sprung the leak which forced him, by the advice of his crew, to bear away. It was not, however, alleged, that any extraordinary press of sail had been necessarily carried to avoid a lee shore. The captain had, in his first protest, stated, that he had sailed from Honduras for Falmouth: in his second he explained it by saying that he had cleared out for Falmouth, but actually sailed for New York. This, it was proved in evidence, had been done to avoid duties to the amount of 1051. per ton, which must have been paid had the vessel cleared for any other than a British port: it was, however, established, that the thus clearing made no alteration in the premium, for the New York Insurance Company, after being acquainted with the circumstance, continued the risk on the policy they had underwritten, without demanding anything additional.
    The state of the vessel, at the period of her survey and condemnation, was shown to the jury, from the return of a commission containing the evidence of the same persons, whose testimony, given on the survey, had been relied on by the plaintiffs, for proof of loss, and constituted a part of what had been adduced to the underwriters, in support bf the claim against them. By this it was proved, that above two thirds of the ship’s timbers were rotten, in consequence of which, and the decay of the fastenings, her planks had started, and, several of them were also rotten; the bends in the same situation, and loose, particularly aft. That the defects in the timbers and upper workfi appeared to be of a considerable standing; the bends in particular were so bad that they might have been ripped up with a crow bar, for twenty feet aft. Many of the treenails, chain bolts, and other fastening bolts, started; the bends totally so from the transom, amA very much decayed. That the starting of the bolts and lIRids arose from the rotten state of the planks and timbers, which could not hold a nail. That the upper works, inside and out, were mostly decayed, her water ways open. That she could not have been a staunch, tight, strong and seaworthy vessel, fit for the voyage [*219] *on the 21st of November, 1799, (the day of her departure,) and her general decay could not have taken place between the time of her leaving New York, and that of her survey.
    To discredit the evidence under the commission, and rebut the testimony it afforded, the plaintiff adduced the two ship-carpenters who had examined the vessel, and the master, who, previous to the purchase by the plaintiff, had last commanded her. The two first swore, they believed the persons examined under, the commission had testified falsely, and the latter deposed that the vessel was staunch, tight, strong and seaworthy, when he left her, and in her former voyage had not made a pint of water. On this evidence the jury found for the plaintiff, as for a total loss.
    A motion was now made for a new trial;
    1. Because the verdict was against evidence, the vessel not being seaworthy when she sailed.
    2. That she never .sailed on the voyage insured.
    3. That if she did, and was seaworthy, there was not a sufficient disclosure, she having cleared for Falmouth, and by that means increased the risk.

      Pendleton, for the defendant.
    Without totally rejecting the evidence under the commission, it is impossible to reconcile the verdict with the state of the vessel. That a ship was seaworthy requires the strongest evidence to support it; it is not to' be presumed that all are so, till the contrary is shown: but if this should be the rule, still it has been complied with. The testimony of want of seaworthiness could not have been resisted but by prejudiced minds; in this case, more than any other, it ought to have been conclusive.
    The witnesses on the part of the defendant were first produced by the plaintiff himself, to substantiate his claim. Surely, no man shall present a person as credible, and when he has used him for such a purpose, immediately afterwards impeach his credit. By adducing him, a credit is given, which it is fraudulent afterwards to shake. The protest and survey go to establish the credit of the witnesses under the commission, and the facts they testify to, when interrogated on a solemn examination, corroborate, in every *particular, the decayed and unseaworthy [*220] state of the vessel. They cannot be disbelieved without saying almost in express words, that they are perjured ; they must be so, if the vessel was not as they have represented, and they unanimously state the loss to have arisen from the rotten, unseaworthy state of the ship. To contradict this, no one extrinsic circumstance, or accident is shown. There is not a single fact which could work an injury to the vessel: not even a lee shore stated to give a pretext for a press of sail, and consequent straining of the ship ; but this could not have rotted her planks; it might have caused her to leak; yet that circumstance is otherwise satisfactorily accounted for, by her seams being open. It is singular the plaintiff should not have produced his captain ; a man who must certainly have been able to give the fullest insight into all matters relative to the present question. The examination, previous to the purchase of the vessel, and subsequent report of the ship-carpenters, do not establish her seaworthiness. The same things happened with the Mills frigate. (Park, 122, 222.) Had the Hope been reparable, she might have obtained all that was necessary at Honduras. The only person who says it could not have been done is Williams, who never was there, whilst the man who had been,.swears the reverse. The captain, too, deposes very equivocally; he states that he believes she was seaworthy when he sailed from Hew York, but not even a belief is mentioned when he left Honduras. Where there is evidence on both sides, the rule generally is, to let the verdict stand; but when it is against the weight of evidence, and some of the witnesses are foreigners, the court will give an opportunity of establishing their credit, especially in a case, like the present, of doubt and importance. The bias, too, of juries, in subjects of this sort, cannot be unknown to the court. On the second point, the defendant had strong reason to expect a verdict in his favor.' The testimony of three persons evince the vessel sailed on a voyage to Falmouth, and not on one to Hew York. Though this latter is afterwards stated by the captain to have been the real voyage, it is to be remarked that he flatly [*221] contradicts himself, and was, at *the time of each assertion, equally upon his oath. If, indeed, he is io he believed, as to what he last says, the risk was increased: and if the vessel did sail on a different voyage than that insured, a new policy ought to have been effected, for the first was clearly void.

      Troup

    referred the court to 2 Marsh. 364, as to the inefficacy of the survey and report made before the voyage, and Park, 192, 193, the last edition, for the Ostend case, (Planche v. Fletcher, Doug. 251,) in which the usage of trade was relied on.

      Hamilton and Harison, for the plaintiff.
    The cause is one of those in which the court will grant a new trial with extreme caution. It is true it has, in one instance, been done; but in that the loss happened by the vessel’s foundering at sea, without any circumstance by which it could possibly be accounted for. (See Dow v. Smith, ante, 34, note.) But^though the accident should arise from any latent defect, a premium is,, in fact, paid tó insure against it. This will, on investigation, be found to be correct. The underwriter, in forming his calculation, considers the quantity of losses in proportion to the safe arrivals. On this datum he forma his estimate; seaworthiness must, therefore, be included: Of the number foundered at sea, many must have perished from latent defects, which ripping up alone would discover. Therefore, these must have constituted part of the risks calculated. If, then, the calculation be founded upon this, latent defects are paid for, and premiums actually received for them by.the underwriter. If therefore she was seaworthy at the inception of the voyage, the progressive decay is at the risk of the underwriter. The interest of trade requires this mode of reasoning; for it is the policy of commerce to divide the weight of loss, and throw the load upon many, rather than upon one. To warrant, therefore, a new trial on this ground, it should appear clear and manifest, that the vessel was not seaworthy when the risk attached; that is, on her arrival at Kingston.^ There is not a particle of evidence to that effect. There was, therefore, abundant reason for the jury to deliberate, and to determine as they have done. The credibility of witnesses is also their exclusive province, and on this they have decided. That they might be fully ^adequate to do so, a struck [*222] jury was obtained, and they, from their skill in Navigation, aided by their general knowledge in mercantile transactions, have found the probability of truth on the side / of the witnesses of the plaintiff. It is in evidence that the greatest exposure to danger, and possible increase of latent defects, would naturally arise at and from Honduras. She might, therefore, have been seaworthy at Kingston, and in coincidence with every circumstance, have become after-wards unfit. Her cargo, in her former voyage, was of a very heavy nature, and yet she never leaked a pint The parts which are always the first to decay were bored, and found perfectly sound. Every single fact separately taken, proves her seaworthy at the commencement of the voyage. The period between her survey in Mew York and that in Honduras was only nine months ; comparing the two reports, the j ury discredited the last. But if they had not done so, still their verdict was well warranted, the loss arising from perils of the sea, deteriorating the vessel after the inception of her voyage, when she clearly was seaworthy. Therefore, we do not impeach the credit of our own witnesses, by the examination of the ship-carpenters residing here: we only show to what time their evidence relates; that it proves the loss during the time of the policy, though there may, perhaps, be some reason for supposing a little exaggeration in the description. In foreign ports, speculating surveys are sometimes to be found, where the hope of purchasing a vessel may induce her being condemned. The right of a jury is to weigh the credit of both foreign and domestic witnesses. The course of the navigation being through keys, demanded a press of sail; and this is another cause for finding that the loss and leak arose from perils of the sea. If there is a doubt in a case, as to the absolute origin of the disaster, the jury are to decide, and this they have done. The case of the Mills frigate is very distinguishable from this; the examination in that proved the vessel not seaworthy when she sailed on the voyage insured. On the second point, the only evidence that could be relied on was the captain’s. He only could know the real [*223] destination of *the vessel. The others spoke from the papers alone. The apparent contradiction is easily reconciled, and the explanation given in the second protest is substantiated by the owner’s letters, which proved the voyage sailed on to be that which was insured. The object of the clearance to Falmouth is consistent with the known usage of trade, being merely to save the British duties. This very course of trade was relied on in the Ostend Case, (Planche v. Fletcher, Doug. 251,) and allowed to regulate the mode of clearing out. It has never been said that fallacious 'papers are fatal, when resorted to merely to give a commercial advantage to the assured. Besides, in this case, the rate of premium was not affected, nor indeed could it be; for as there was no warranty, it was a war risk, in which the underwriter guaranties against every species of loss which may arise from capture. False papers endanger only neutral policies but cannot enhance the risk of a belligerent insurance: and according to the decisions of this court, the present must be of that description.
    That a cause is of importance, is by no means a reason for granting a new trial. It should also be difficult, and to render it otherwise, a probability of obtaining new lights, by a second investigation, should be made to appear. It is observable, too, that to prevent that very bias which is now urged as a reason for according the effect of the motion, a struck and select jury of persons pre-eminently qualified was empannelled. "Whether a vessel be seaworthy or not, is a question of fact; and being so, the established maxim, that to matters of fact the jury shall answer, fully applies; for there is not one circumstance to make an exception of the present case, and induce the court to exercise their power of remanding the cause. Where the scales are nearly balanced, they should never be taken from the jury and carried to the bench. This is to destroy the most invaluable of our rights, and submit fact, as well as law to the judge. Suppose the case sent back, and then there should be verdict against verdict, as well as evidence against evidence, how long will the court be before it shall be satisfied which ought to ^preponderate ? That [*224] the vessel was seaworthy at the commencement of the voyage, is every way reasonable. Barnewall wanted to buy a sound ship; strong, tight and staunch, for the purposes of trade. He was solicitous she should be so, and his interest coincided with his wish. To ascertain the fact, she was critically examined in parts where she could not be sound if she was not seaworthy. This must have weighed with the jury, and they have found accordingly. Take the account given of her before, and just after her purchase, and see if it is possible that the return to the commission could be true? But to set aside this verdict, the court must go a step further than even the witnesses under it; they must say the vessel was not only not seaworthy at Honduras, but that she was not so at Jamaica. (Marine Ins. Go. v. Wilson, 3 Oranch, 187.)
    They must go still further, and say none of the decay took place whilst at Jamaica, Honduras, or on the voyage. To constitute unseaworthiness, one or two defective timbers are not sufficient. The vessel must be in such a situation as to be unable to perform her voyage. Can this be, said when the Hope left Jamaica ? If not, the cause will not be sent back. Besides, there is no further evidence to be gotten. Therefore, there cannot be any new light thrown upon the subject. What is to be derived from the testimony under the commission ought, perhaps, to be received with great caution, if meant to affect the seaworthi. ness of the ship at the inception of her voyage. She had been a long time in a climate more than ordinarily deleterious to shipping; she had not been wafted from thence by halcyon gales, but had encountered, according to the second protest, violent winds and boisterous weather, under a press of sail, which made her labor, and after these events her state is described. These circumstances were doubtless taken into consideration 'by the jury, and it is impossible to send the case to them, under better circumstances than they have already had it. It may be alleged that we ought to have produced the captain; but the court will remember he is a seafearing man, and obliged to follow his profession. If, however, he was necessary, he certainly must have been more peculiarly so to the [*225] opposite side; and they have *not thought fit to produce him. The objection which has been made on account of the clearance vanishes before the circumstances of the case. That a vessel clears for a particular port is no proof of her being destined there. The contrary was declared in this case to the Hew York Insurance Company. It appears from the letter of instructions, the captain’s protest, and every thing else, that it was entirely a Hew York transaction. The disclosure itself shows how unimportant it was: it did not affect the premium. The rule contended for, is to establish that a vessel insured to one port, to which the owner’s declaration to one underwriter, the instructions and protest of her captain show she is destined, shall be vitiated by a clearance to another port^ made for the sake of saving duties. The Ostend Gasei (.Planch v. Fletcher, Doug. 251,) cited as authority for this, is the very reverse. A clearance is never conclusive. 1 Marsh. 229, 231. It is the daily practice to clear out from foreign ports, as will best suit the voyage actually intended, and this being a belligerent risk, devoid of all warranty., the hazards could not'have been increased by a want of disclosure, had it in no degree been made.

      Hoffman and Pendleton, in reply,
    This has already beex stated to be a case of magnitude. It is so, not only from the sum in controversy, but from principle. It is peculi orly important, because, without examining the testimony, and showing that a verdict has been pronounced on th* most contradictory ever offered, it is now become almost a\\ maxim for juries never to find a verdict for a defendant V when unseaworthiness or usury are relied on in defence. * On the very outset of the trial the jury betrayed a preju dice, on an idea that the insurer undertook to guaranty the seaworthiness of the vessel. The court now has to. decide whether the testimony will justify the verdict. We admit that where circumstances speak one language, and witnesses another, circumstances are to be believed; but where two sets of witnesses speak contrary, and circumstances coincide with one set, the other must be disbelieved. How the circumstances at. the time of the survey, detailed under the commission, coincide with the evidence of Potts and others, that the vessel could not have been seaworthy when she left Hew York.
    *This fact, then, is corroborated by extrinsic tes- [*226] timony, the weight of which is clearly with the defendant. To balance this as it is called, Middleton is examined as to the state of the vessel in 1795. With as much propriety the builder might have been resorted to, and with such a latitude, it would be singular indeed if the vessel should not be proved seaworthy at some time or other, and .the number of witnesses in process of examination rendered equal. That one circumstance relied on by the plaintiff should be literally true is impossible. That the ship did not make a pint of water, during her passage from England, neither your honors nor the jury could believe. It is what could not happen in even going to Albany. But even this was ten months previous to her purchase, and if true how came it that, at the expiration of that time, she wanted repairs to the amount of 600Z. ? Notwithstanding which, Dorgan swears she was then fit to go a voyage round the world. If he and Middleton be taken away, then the number of witnesses will be eight to four; and where there is a contrariety of testimonyj number ought certainly to prevail. The witnesses at Honduras demand, from their situation, more regard than those here. Dorgan had sold the vessel. Williams had a duty to perform, and is brought forward to swear to a fact which will prove it was faithfully discharged. Can there be a doubt, therefore, of the tendency to a bias? None of this can be imputed to the witnesses under the commission. Their testimony coincides with the survey; a survey taken by the plaintiff’s captain, made use of by the plaintiff to substantiate his claim before the underwriters, used by him in evidence, and without which there is no proof of loss. It is singular that an argument should be raised by the plaintiff agaist testimony which he himself, through his own agent, the captain, has caused to be produced. But what is still more extraordinary, is, that when the survey is to be impeached, and the facts it contains discredited, the plaintiff’s captain, who was present, and saw whether they were true or not, is passed by, and Williams, a New York ship-car- . penter, called upon to negative them.' This to be sure, he does pretty roundly, by asserting on oath, that all those who *were examined two thousand miles off, [*227] swore falsely to things before their eyes, which his never saw. The plaintiff never even examines his own correspondent at Honduras, but rests on a person here to contradict what passed there. The seaworthiness of the vessel is in no one point asserted by the captain in his protests. In neither does he show any adequate cause of decay. Giving the utmost extent to all he says, it could amount only to leaking, not to rottenness: to a rottenness which would not admit of repairs. Yet it is suggested she might have been perfectly seaworthy, staunch, tight and strong, when she left Jamaica, only nine weeks before. The clearance being false, rendered the vessel liable to be carried in for adjudication, and though she might not be ultimately condemned, it would subject her to further proof. The risk,therefore, was increased, and ought to have been made known. 1 Marsh. 232.
    Had the vessel been met with by a French cruiser, she would, on account of her clearance from a British settlement to a British port, certainly have been carried in: so, nod she been met by a British cruiser, steering a course different from her destination, it would have been attended with the same consequence. Wherever papers appear false and colorable, a neuter is in a worse situation than a belligerent. She is exposed not only to be captured by one party, but by all; for every nation is equally her enemy If the court will refer to the doctrine of the admiralty, they will fina this to be the law. The consequence is, that allowing the risk of the underwriter where there is no warranty, to be a war risk, this is greater than any war risk; because among hostile parties, there are some friends, but a neuter thus navigating has none, and a usage has not been proved.
    Here it was observed by counsel, that the effect of color-able papers had never yet been the object of particular discussion, and that if the court was disposed to hear an argument on the subject, they wished to have another day appointed. This being accorded, the second argument was afterwards opened by
    Troup, for the defendant.
    The question now is, whether the non-disclosure of the clearance being for Fal[*228] mouth, *was a concealment of a material fact. It so, that, varying the risk, must, of course, avoid the policy. At the period when it was effected, and the voyage to be performed, Great Britain was involved in a war with France, Spain, and Holland. The consequences, therefore, of a false paper, would be different from those which would arise in a time of peace. It is a settled maxim of the laws of nations, that neutrals, to have the benefit of their neutrality, should, in every part of their conduct, proceed with the utmost good faith. All neutral ships are, therefore, to possess genuine papers. These are, on her being boarded at sea, the first objects of examination. If they present false or colorable appearances, it is on all sides deemed a sufficient reason for sending it for further examination. If discovered to be fraudulent, condemnation is sure to ensue: if fair, the only indulgence is to produce further proof of neutral character, on establishing of which, though acquitted,- costs are invariably to be paid; for the belligerent is not in fault when the papers do not speak that which is true. The risk of interruption and detention is therefore enhanced by a false or colorable paper. Abbott, 184; 1 Mol. 329, b. 2, ch. 2, sec. 9; Ooll. Jur. 135, 136; 1 Bob. Adm. Bep. 371, 377, 378, 124, 126, 165, 247, 248; 2 Bob. Adm. Bep. 158, 161, 349; 3 Bob. Adm. Bep. 77, 78, 80. The cases cited show that if them be an alternative destination, even that ought to be ex pressed. • Here not even that form was complied with, bui the clearance was positively and determinately false. A usage has been on a former day urged, but the court will ■look to the case, and none is there to be seen. If none, the underwriters could not presume the clearance would be to Falmouth. Had the vessel been met with by a French cruiser, the conclusion would, from, her clearance, have been that she was, in fact, a British vessel with British property. This, then, is a risk and danger which, with fair papers, could not have been encountered.
    The same would be the case let her be met with by what cruiser soever. Suppose even the letter of Barnewall discovered, what would then have been the conclusion? That she was an American vessel, carrying an English cargo. She was evidently in a trade authorizing seizure, running a *risk not contemplated, and, therefore, [*229] the underwriter entitled t'a say non hmc in fcedera veni. That no injury had ensued from this particular cause is immaterial, the concealment being fraudulently. Rich v. Parlcer, 7 D. & E. 708, 709, 710.

      Harison and Hamilton, contra.
    The question is, whether the concealment be of a material fact. This certainly was a matter for jury determination. M’Poival v. Frazer; Shirley v. Wilkinson, Park, 205, 206, 207. It ought not, therefore, now to avail. Barber v. Fletcher was exactly the same ground of application. Doug. 292. Had the fact been material, it ought to have been made an object of particular inquiry before the jury; and this not having been done it is now too late. This position the authorities cited will establish. Planche v. Fletcher, (1 Marsh. 845, 346,) evinces how little stress was laid upon the clearance. Lord Mansfield in that case says, the non-disclosure of the proclamation made no difference, for other underwriters insured afterwards at the same rate of premium. So here, the risk was continued without any advance of price; and on this very circumstance the jury probably have decided. The increased risk by the colorable clearance, allowing all that has been said, was within the policy. It was contemplated by the underwriter to embrace all belligerent risks; therefore, there could be no concealment of a risk which was purely belligerent, and comprehended in the premium. There was no warranty. Capture, then, was a risk within the policy, and the underwriter cannot, therefore, set up as a defence, that from this paper the vessel ran a risk of being taken. For, that he should indemnify against this was a part of the contract itself. It can never, therefore, be urged that there was a concealment of that which, from the nature of the agreement, is necessarily implied, and for which a premium must consequently have been paid. To explicitly communicate such circumstances is a refinement, in the doctrine of disclosure, of perfectly novel invention. Under a general policy, for whomsoever it may concern, unaccompanied with warranty, it is unnecessary to state that the proprietor is belligerent; 2 Ezner. 460. In Wooldridge v. JBoydell, (Doug. 16,) the immateriality of the clearance is allowed; and in the present case it must be wholly so when every war risk was included.
    *It is unnecessary elaborately to argue in support of that which a decision of the court has already settled. The policy covers every belligerent risk which could arise. It might be French, British, Spanish, or Dutch property, for every war peril is covered. If so, condemnation is insured against. The question then is, can any situation in which neutral property is placed, be attended with more dangerous consequences than when confessed to be that of an enemy in whose hands soever it may fall? Can the risk of being carried in for adjudication (which is all that is attempted to be established from the clearance) be greater than the certainty of condemnation against which the policy insures ? The point cannot be argued more forcibly than by asking the question.
    Pendleton, in reply.
    This case presents two questions; one general, the other particular. The general question is, whether a vessel having false documents relating to ■ her voyage and destination, should not always forfeit the protection of the policy. It is of the utmost importance to neutrals to establish a character for good faith. False papers ought, therefore, to be discountenanced, from motives of public policy, as tending to corrupt the morals of the people, by inducing perjury and dishonorable speculations in covering property. It is settled that every thing increasing the hazard ought to be disclosed. The true inquiry then is, whether the paper might not have produced a hazard the vessel would not have been subject to without it? By the French ordinance of 1744, false papers are worse than either the want or destruction of them, and in the Os-tend Case, it is to be remembered the usage was to have them false. They invariably subject to further proof. The answer to the Prussian memorial, and the case of the De Hoop, prove this. They even increase belligerent risks. For an enemy’s property always receivés protection from one side, but false papers take it away from all. A clearance is also a public document, and comes from public officers. It ought, therefore, to be genuine; neither a forgery, nor a falsehood, because it may implicate them. They are also applied to purposes of acknowledged fraud; to cheat *the revenues of other countries; policy, [*231] therefore, would dictate the propriety of leaning against them, though the revenue codes of foreign nations are not noticed in our courts. Had the vessel been cleared for Hew York, she could have run no kind of risk of detention ; therefore on the particular question, as relating to this cause, it enhanced the danger. Pick v. Parker, 7 D. & E. 705 ; 1 Esp. Bep. 615. And this, like a deviation, avoids the policy, not being qualified by any usage, either general or particular.

       The examination there was, as hero, at the place where she was coil' flemned after previous examinations, finding her seaworthy.

   *Thompson, J.

The two questions arising [*232 233] out of this case for decision are,

1. Whether the verdict was against evidence, on the question of seaworthiness ; and,

*2. Whether the plaintiff ought not to have [*234] disclosed to the defendant that the vessel would have a clearance for Falmouth.

There is, in every insurance, an implied warranty that the ship shall be seaworthy when the risk commences; that she shall be tight, strong, and in all respects, fit for the intended voyage. ¿.The insurer undertakes only to indemnify against the extraordinary and unforeseen perils of the sea, and not against the ordinary perils to which every ship must be exposed in the usual course of the voyage proposed. If a vessel become incapable of proceeding on the voyage insured, the presumption prima faeie is, that it arises from unseaworthiness, unless some adequate cause be shown to occasion the damageT/ But, if any such cause be shown, so that the loss may be fairly attributed to sea damage, and the underwriters mean to rely on the ship’s not being seaworthy at her departure, the onus probandi will then lie on them. To test the present case by these rules, we find the only testimony, as to the immediate cause of the disaster, is that contained in the two protests. From the first, made by the master, chief mate, and one seaman, it appears that the vessel left Honduras the 27th of January. That on the 28th January, she met with strong gales, so that they were obliged to close reef the fore-topsail, and close reef the main-topsail. That on the 29 th, strong gales, and a heavy sea'from the noth ward, still under reefed sails, the vessel making much water. On the 30th the wind abated; and nothing remarkable occurred until the 2nd of February, when they found the leak increased to that degree that they could not keep her free from water with the pumps. They then bore away for Swan’s Island, which being unable to reach, they determined to return to Honduras, where they arrived the 18th of February. During the above time, they encountered, at various periods, stiff gales and heavy squalls. Thus we find the ship, from the 28th of January until the 13th of Februarjr, a very considerable part of the time laboring under stiff gales and heavy weather, far beyond the ordinary perils of the sea. The master swears • that shortly after leaving Honduras, he met with excessive hard winds; that the navigation was difficult and dangerous, and *he was obliged to carry a very heavy press [*235] of sail, in order to avoid the reefs and keys; and that after he had met with considerable injury, and it was determined again to return to Honduras, he experienced heavy gales, and various changes of weather. This I think sufficient to show that the loss may be fairly attributed to sea damage, and throw the onus probandi of unseaworthiness on the defendant. On this subject, the testimony is certainly very contradictory, and, in my opinion, irreconcilable. The implied warranty on the part of the assured is, that the vessel was seaworthy at the commencement of the risk; this was on the 21st of November, 1799, while she lay at Kingston. The testimony on the part of the plaintiff is, substantially, that in April, 1799, when he had it in contemplation to purchase this vessel, he procured ship-carpenters to examine her, and ascertain her situation, previous to completing the bargain; no possible inducement, therefore, to a fraud, on the part of the plaintiff. They examined her accurately, bored in places most liable to rot, and found her sound; stripped off her sheathing; found her bottom English elm, and perfectly sound; her naval hoods and head knees sound; took off the plank, so as to examine her top timbers, and found them sound and good. The testimony of Captain Dorgan, likewise, who arrived in March preceding from the West Indies, in this ship, with a cargo of 500 hogsheads of sugar and molasses, tends to show that she was a very tight, strong vessel, and only ten years old. This, it is said, however, was seven months before the commencement of the present insurance. But if she was in the situation represented by these witnesses in April, it is inconceivable that she could be in the rotten and decayed state represented by the defendant’s witnesses in November thereafter. The examination made by the defendant’s witnesses was in February, 1800, three months after the commencement of the risk. All the progressive decay, therefore, from the November preceding, was at the risk of the underwriter But it appears incredible that all this decay could have taken place in that period. for the defendant’s witnesses represent that when she was surveyed by them, two thirds of her timbers [*236] were rotten, many *of her plank started and rotten; her bends so rotten and loose that with a crow bar they might have been ript up for twenty feet; her upper works in a very bad state; and, in short, that there was a general decay of her timbers, bends, and plank. The master of the ship, however, swears, that had she arrived in any port on the continent of America, she might have been repaired, fit for the voyage, for fifteen hundred, or two thousand dollars; but if she had been in the situation represented by the defendant’s witnesses, she must have been irreparable. On the whole, the testimony is so directly and palpably contradictory that it is impossible to ■reconcile it. It thus becomes a question of credibility of witnesses, and this is peculiarly within the province of a jury to determine. Whether the vessel was seaworthy or not, is also matter of fact, to be submitted to a jury. These points have been decided by a respectable jury of merchants; and in such case, where the question is doubtful, and the testimony contradictory, I think, the court ought not to interfere by granting a new trial, unless it appears that injustice has been done, or that further light may be thrown on the subject on another examination.

In the case of Ashley v. Ashley, 2 Strange, 1142, the judge who tried the cause (which was upon a promissory note for 5,0001 which the defendant insisted was forged) certified, that the weight of the evidence was with the plaintiff, and he thought the jury would have found for the plaintiff, but they found a verdict for the defendant. And on an application for a new trial, the court said, as there was evidence on the part of the defendant, the jury‘were proper judges to determine which scale preponderated; that it could not be said to be a verdict against evidence, and so refused to grant a new trial. The same rule was adopted in the case of Smith v. Huggins, 2 Strange, 1142, and a new trial de> nied, although the evidence -was weak on the part of the plaintiff, and the judge who tried the cause strongly inclined against the verdict.

I am, therefore, of opinion, on the first point, that a new trial ought not to be granted.

With respect to the second question, I think there can be but little difficulty. There is no doubt but the real destination *of this vessel was for New York, [*237] as described in the policy, and not for Falmouth, as the clearance purported. There is no contradictory testimony on that subject, except, that in the first protest it is said, as in the clearance, she sailed for Falmouth and a market, but as to the actual place of destination of a vessel, I think the captain, unless his testimony is impeached, is entitled to full credit. He, of all others, is the most likely to know this fact; and he, when examined as to that point particularly, declares explicitly, that she sailed for New York, though her clearance was for Falmouth and a market ; and in this he stands corroborated by the testimony of Alexander Anderson, the plaintiff’s agent at Honduras. I, therefore, take it for granted, that the vessel sailed on the voyage insured. So far as any reasons could be discovered for taking out a clearance for Falmouth, it was to avoid the payment of certain charges, that would otherwise have been incurred at Honduras. There was no warranty or representation, and it has been settled in this court in the case of Murray v. United Insurance Company, (July term, 1800,) that in such cases, the underwriters take upon themselves war risks. Under a policy of this description, I cannot conceive how this clearance could, in any manner, prejudice the underwriter, or increase the risk; and, therefore, immaterial whether disclosed or not. In all the cases cited from Bobinson’s Adm. Bep., where false and color-able papers came under consideration, the question was, as to the neutrality of the property; the papers purporting a different voyage or owners from the other testimony, and so considered a circumstance of fraud and suspicion. But as the present insurance is general, and includes war risks, this clearance was immaterial.

I am, therefore, of opinion that judgment ought to be rendered for the plaintiff upon the verdict of the jury.

Radcliff, J.

On the trial of this cause, the defendant rested his defence principally on the want of seaworthiness. This objection was relied upon in the argument for a new trial, and two other grounds were also taken, viz:

1. That the ship sailed from Honduras for Falmouth, and rot on the voyage insured.

2. That there was not a sufficient disclosure.

*I shall begin with considering the two points last mentioned.

As to the first of these, the evidence is, that the ship cleared at Honduras for Falmouth and a market. The captain and mate, and one of the seamen, who made the original protest, therein swore, that they sailed from Honduras, bound for Falmouth and a market. On this evidence alone, I should have no doubt that the voyage from Honduras ought to be considered as destined for Falmouth. But the captain, in his second protest, explained that he in fact sailed for Hew York, although he cleared for Falmouth. How far this explanation can be reconciled with his former deposition in the first protest, or ought to be received without further proof to establish the fact of his sailing for Hew York, it is not important, under the circumstances of the present case, to decide. There is other evidence, to wit, the deposition of Alexander Anderson, and the letter of the plaintiff of the 3d of October, 1799, explaining the object of the clearance for Falmouth, which I think sufficient to justify the verdict, on the ground that the vessel actually sailed for Hew York.

2. Assuming the • position, that the vessel was in fact bound for Hew York; the second point has been treated as more delicate and important. She was bound for Hew York, but cleared for Falmouth. It is not stated in the case whether the cargo was consigned to any person at New York, nor in what manner her other papers appeared." The objection is, therefore, founded on the clearance alone.

In considering this question, it is material to observe, that the insurance was general, without any warranty or representation that the property was neutral. It follows, according to the decision of this court, in the case of Murray v. United Insurance Company, that it extended to protect belligerent as well as neutral property. If the risk, therefore, was not increased beyond what it would have been in the case of belligerent property, the circumstance t f a false paper, or a clearance for a port of one of the nations at war, could not be material. The underwriter must be deemed to have received the premium adequate to the risk, which this circumstance implies, and *ought, therefore, to be liable. Besides, I think [*239] it too uncertain, and too great a refinement, to establish a rule that every paper, which, in the opinion of the cruisers of a belligerent nation, may be deemed suspi clous, and induce them to carry in a vessel for adjudication, should be held necessary to be disclosed. It would be impossible to meet the ingenuity, or avoid the cupidity of that class of men, and prescribe a safe and practical rule on the subject.

3d. On the point of seaworthiness, there was much contrariety of evidence.

On the part of the defendant there appeared,—

1st. A survey of the vessel, made on her arrival at Honduras, by eight persons, at the instance of the captain, who certified, upon oath, that she was wholly defective in her timbers aloft, her "upper works, inside and out, plank rotten, and otherwise generally decayed; that on account of these defects, and other injuries which she had received, she was, in their opinion, unsea worthy; and, from the difficulty of procuring workmen and materials, and the high price of labor and provisions, she was incapable of being repaired for her full value after the repairs should be completed.

2d. The depositions of four of the -above persons, who made the survey, taken under a commission, who testify, generally, to the same effect. Three of them add, that they verily believe .it was impossible the ship could have been seaworthy on the 21st of November, 1799, at which time she commenced the voyage insured. Two of the three last mentioned witnesses are ship-carpenters, and the third a mariner. The fourth is a merchant, and speaks with more diffidence of his knowledge of vessels, but says, that he firmly believes that some of her timbers had been rotten a long time.

In opposition to this the plaintiff produced,—

1st. The protest of E. Atkinson, the master, of the chief mate and one seaman, who swore, that when they sailed from Honduras, on the 27th of January, they firmly believed the ship was tight, staunch, and well fitted and provided for the voyage. The master, in a supplementary protest, again positively declared, that she was tight, staunch and strong, and well fitted for sea.

*2d. A deposition of Andrew Dorgan, who testified that he had been master of the ship immediately before the plaintiff purchased her, for the period of fourteen months; that during that time she was twice hove down and examined, and none of her timbers were found rotten or defective; that during all the time he sailed in her, he thought her as strong, staunch, and good a vessel as any he had ever sailed in, and when he left her, which was in April, 1799, she was, in his opinion, fit to go to any part of the world.

3d. The testimony of Thomas Williams, examined at the trial, and the deposition of William Peacock/ two ship-carpenters of the city of New York. They examined the ship at the request of the plaintiff, previous to the purchase by him, in April, 1799, and reported her to be generally a sound and strong ship; after the purchase, they made some repairs to her, fitted her for sea, and had a full opportunity then to ascertain her real condition; they add, everything was done which was necessary to render her seaworthy,, and that, after such repairs, she was perfectly sound in all her parts, and fit for any voyage. One-of these witnesses, Thomas Williams, also said, that from the state of the ship when he repaired her in April, 1799, it was impossible she could be so decayed at the time of the survey at Honduras, as was represented by the surveyors there, and that, in his opinion, they must have sworn falsely.

4th. The testimony of Samuel Middleton, and one Bird, the plaintiff’s clerk. The first of these proved, that he helped to repair the ship in the year 1795, and, from her condition at that time, he was fully of opinion that she could not have been so rotten as was stated in the survey, and the evidence taken at Honduras. Bird, the plaintiff’s clerk, established, that the charges of the ship, after the purchase, and including her outfits, amounted to 3,040 dollars, and that the purchase-money was 5,000 dollars. He could not distinguish how much was expended for the repairs alone.

The defendant also produced one Rose, a witness, who was a captain of a ship, and had been often at Honduras since the year 1795. He testified that William Gibson, one of the surveyors, was a respectable merchant, and treasurer *of the settlement; that Thomas [*241] Potts, another of the surveyors, was one of the richest merchants there, but he knew nothing particularly respecting him. That he was acquainted with two of the other surveyors, but could say nothing of their character. This witness also said, that the vessel must have been very strong to carry the sail described in the protest, with a hard north wind, and he thought she could not havb done it if the wind had been very high. Two other witnesses, judging from the sail she carried, also testified that in their opinion the weather could not have been so violent as to injure a sound and strong vessel.

This was the principal evidence concerning the question of seaworthiness which was submitted to the jury as a fact to be determined by them. As that fact appears to have been generally submitted, I think it not material to examine the substance of the charge in other respects. But J take this opportunity to observe, that the opinions and directions of judges at the circuits, as made by the parties, appear, too frequently, very different, both in form and substance, from what they really were.

In the present case from the face of the charge, and the simple nature of the question under consideration, it is manifest, that it can neither be correct nor entire. This, however, appears to me unessential to the decision of the question between these parties. I view it as a question depending on the weight of contradictory evidence. The witnesses at Honduras had, do doubt, the best opportunity for correct information. They saw the vessel immediately after the disaster happened and examined her. They could not be mistaken in their knowledge of the fact, whether she was so rotten or decayed as they have represented, and if they speak the truth, she must have been extremely deficient and unseaworthy.

On the other hand, it is difficult to reconcile their evidence with the testimony of the plaintiff’s witnesses. The depositions of Dorgan and the two ship-carpenters in the city of Hew York, prove,-that the vessel at, and shortly before, the time she left that port, was apparently seaworthy, and in a condition which it seems impossible [*242] could admit *of so great a decay in the period of seven month s, at th e expiration of which the voyage in question commenced.' These, and other parts of the testimony, appear to me irreconcilable. If the question is to be decided on the credit of the witnesses merely, and there'be nothing to impeach those on either side, the greatest number testify to the fact that the vessel was unseaworthy. These were witnesses residing at Honduras. That circumstance, and the want of a sufficient knowledge of their character and credibility, have been urged against allowing much weight to their testimony, when in competition with other proof. But if there be any general reason to discredit the witnesses abroad, other circumstances, in this instance, operate in their favor.

1st. As has been already observed, they possessed better means of information. They examined the ship immediately after the accident happened. The examination of the two ship-carpenters in Hew York, from its nature, must have been more superficial, and it took place seven months before the vessel sailed on the voyage insured.

2d. In the captain’s protest no cause is stated adequate to the injuries described. A sound ship, under the circumstances therein set forth, could not, in all probability, have been so injured. It does not appear that any material accident happened; no external injury was suffered ; not a spar nor a sail was carried aivay, although a considerable press of sail was sometimes used. I do not perceive that anything more is represented to have happened than what might be expected on such a voyage, and what a ship ought to be competent to encounter.

3d. The captain, in his protest, swears in general terms, without designating the particular injuries sustained, and refers to the survey at Honduras, which contradicts his testimony.

Heither he nor any of the crew were examined at the trial, and no reason has been given why they were not produced. I think it was to be expected from the plaintiff to produce them, andxby their testimony it was in his power to throw further light on the subject.

There is great reason to doubt the propriety of the verdict, and, considering the value in controversy, and that %nore light can probably be obtained, I think [*243] the cause ought to be reviewed. The circumstance that here was a struck jury, is not of decisive weight in favor of the verdict, especially as it is founded on a point against- which, as a ground of defence, it is known considerable prejudice exists.

I am, therefore of opinion, that there ought to be a new • trial on the question whether the ship was seaworthy.

Kent, J.

The ship cleared out for Falmouth instead of Kew York. The clearance was for Falmouth and a market, although the ship was actually bound for Kew York. She was loaded with mahogany at Honduras, and cleared from there and in sixteen days after she sailed, she returned in distress.

I state no more of the testimony in the case, because the fact's stated are sufficient for the only point which I heard argued in the cause, and on which I give my opinion, viz. whether there ought to have been a disclosure that the ship cleared for a different port than the one she ivas bound to ?

In this ease, the insurance was in time of war; but the case does not state that there was any warranty, or representation that the property was neutral, and we are to intend therefore, that there was none. The insurer, according to the decision in the case of Murray v. United Insurance Company, (July term, 1800,) took upon himself the risk of enemy's property. The non-disclosure of the clearance for Falmouth could not, then, in any .possible view, be material for the disclosure of the fact (if at all material) could only have been so, as it affected the neutrality of the vessel.

On, this point, therefore, I am for the plaintiff, and that the verdict ought to stand.

Lewis, Ch. J.

An application is made to set aside the verdict in this cause, and for a new trial. Three questions are raised for the consideration of the court:

1st. Did not the ship sail on a voyage different from that insured?

2d. Ought not the fact of her clearance for Falmouth and a market, pursuant to the orders of the plaintiff, of the 3d of October, 1799, to have been disclosed to the underwriter ?

*3d. Is not the verdict against evidence on the [*244] point of the ship's competent sanity to perform the voyage insured ?

The first question is raised on the tact of the Hope’s having cleared from Honduras for Falmouth and a market, when the insurance was for Hew York.

This would be a circumstance of some weight were it connected with others tending to show that the real intention was a voyage immediately from Honduras to Falmouth, but cannot per se, be sufficient evidence of that fact, and certainly cannot be permitted to control the counter testimony, which establishes, beyond doubt, that her real destination was for Hew York, and that the clearance for Falmouth and a market was probably for the purpose of saving certain duties, in the event of the cargo ultimately finding a market at a British port. Her consignee at Honduras, from his correspondence with the plaintiff, understod Hew York to be her destination, and wrote letters by her to his correspondents here. The letter of the plaintiff to tire captain, containing the instruction as to his clearance, directs him, in the same period, to return direct from Honduras to Hew York, as before ordered. The expressions are, “ although you are to return direct from Honduras to this place, (viz. Hew York,) as before ordered, you will clear out the vessel from Honduras to Falmouth and a market.” This, in my opinion, establishes beyond controversy, that Hew York was the port she was bound to. The first protest of the master, mate, and one of the seamen, ‘n which the ship is stated to have been bound to Falmouth and a market is a circumstance almost too slight to be noticed ; for I have observed it a practice, without variation, for the protest, in this respect, to be made according to the clearance, without regard to the true place of destination. In the second protest the master states, he sailed for Hew York, though cleared for Falmouth, thus correcting his statement, when he discovered the fact to be material.

If there is any substantial distinction between the cases of Planche and another v. Fletcher, Mayne v. Walter, (Doug. 238, Park, 195,) and the present case, it is favorable to the last. In the two first, the vessels cleared for an intermediate port, at which they had leave to touch, the [*245] policy continuing to *their arrival at the ultimate port of destination ; in this the policy would have terminated on her arrival at an intermediate port, though she might afterwards have proceeded under her original clearance for Falmouth.

The next question is, whether the fact of the clearance for Falmouth ought to have been disclosed to the underwriter. It is not contended that the concealment was fraudulent ; and in order to render it a circumstance affecting the policy,, it ought to appear material to the risk. The only guide we have on this occasion leads to a contrary result, There cannot be a surer test of the materiality of a concealed circumstance, than its influence, if known, on the rate of premium.

The Hew York Insurance Company were also on this risk, and, near two months after subscribing the policy, assented, without additional premium, that it should not be affected by the circumstance of the ship Hope having cleared out for Falmouth instead of Hew York.

This company must be presumed to understand its interests, and their conduct on this occasion is decisive, that the fact concealed was immaterial to the risk, and therefore the policy is not affected by it.

[The third and last question is on the seaworthiness of the ship. On the argument a novel position was advanced, ■viz. that latent defects are at the risk of the underwriter; that they are covered by the premium, because he calculates chances according to losses. My first impression, I confess, was favorable to its correctness, notwithstanding the force of authority against it. But on examination I was satisfied, that although in part true in point of fact, it is nevertheless. unsound in principle. It is true that losses are the basis on which the underwriter calculates the chances of loss and gain. But it is equally true that his not being answerable for inherent defect, or natural decay, diminishes the number of losses, and thus reduces the chances against him. The implied warranty, then, on the part of the as ■ sured, that the ship is tight, staunch and strong, and well equipped, &c. remains unimpeached, and on the fact of this warranty having been complied with, on the present occasion, rests the question between the parties.//

*The judge before whom the cause was tried, [*246] is, in the case made, stated to have instructed the jury “ that by law every vessel is presumed to he seaworthy/ This I presume to be not perfectly correct, or, in other words, that the instruction ought to have been less general or rather, more precise. [Every vessel is presumed to be seaworthy in the first instance, in respect to the implied warranty only; because the law will not, without cause, presume a party to have falsified his stipulation. But the instant she becomes innavigable, and incapable of proceeding on the voyage insured, the presumption is, that this proceeds from age or internal defect, arising from some other cause, until it appear to have been the effect of sea damage, or unforeseen accident insured against, And with reason is it so; for the insurer engages against extraordinary and unforeseen perils of the sea. And this he docs, in the confidence that the ship is capable of performing the voyage, and assuring to him his premium, ordinary occurrences notwithstanding.

I am strongly inclined to believe that the verdict of the jury in this cause, was owing to the generality of this instruction. That relying too firmly on the presumption, as the reinstated, they sought for positive and conclusive evidence to the contrary, thereby losing sight of the presumption arising from the want of evidence of external accident, and not duly appreciating the testimony taken under the commission at Honduras, as & the real cause of condemnation.

The vessel is stated to have been nine or ten years old at the time of the insurance being made; to have been * thoroughly repaired in 1795, examined in April, 1799, previous to the purchase of her by the plaintiff; afterwards repaired by the examiners, Williams and Peacock, two ship-carpenters, and purchased on their report. They state, that after her last repair, she was fit for a voyage to any part of the world. This testimony is corroborated by that of Captain Dorgan, who commanded her at the time she was purchased by the plaintiff. There is, however, a variance between his testimony and that of the two ship-carpenters. He testifies that she was twice hove down within four-[*247] teen months previous to the sale, some of *her planks ripped off, and her timbers examined, none of which were rotten or defective. Williams and Peacock, the ship-carpenters who repaired her, admit that some of her planks and timbers were tainted, which Williams says were mended, and Peacock, that they were replaced with new.

In opposition to this is the testimony of Hicholl and Tropp, ship-carpenters, and Potts, a master of a vessel, who examined her on her return to Honduras, who testify, that '•two thirds of her timbers were rotten, several of her planks and her bends rotten and. started. This testimony is corroborated by that of Mr. Gibson, who is proved to be a merchant of respectability there, and treasurer of the settlement. He professes to know little of a ship, but dedares that many of her planks were rotten, and several of her timbers so much so as to crumble to pieces when struck with a crow bar.

These witnesses may be said to be interested in her condemnation. The fact may be so. But surely such interest was not greater than that of Williams and Peacock, who probably, had they discovered or disclosed too many defects in her, would have deterred the plaintiff from purchasing, and thus lost the job of repairing her.

She does not appear to have met with any weather that could have effected a sound ship; yet, she made so much water that the master was obliged to return into port. And it is a little singular that if this was the effect of any other cause than natural decay, that it was not stated by the master or some one of the mariners. .It is true, that in his second protest, he speaks of her having experienced heavy gales and various changes of weather, and yet not a spar is carried away, no butt started, no sheathing torn off. Surely a vessel tight, staunch and strong could not have been rendered innavigable by gales that did not require the striking of a top-gallant-mast; for we find the top-gallant-masts and yards standing until the third of February, a day after that on which, by the advice of his crew, he had borne away for a place of safety. He speaks of strong gales on'the 28th of January, and yet the top-gallant-sails were not handed until midnight. Where is the evidence, then, of external injury? There is none, nothing that looks towards this point, except his declaration, *that on the survey, the damage of the [*248] ship was found to have proceeded from the hard gales, in which they were obliged to carry an unsual pressure of sail, as (says he) is more particularly set forth in the survey; now the survey says directly the reverse, and corresponds precisely with the depositions of the witnesses on the part of the defendant.

I think the testimony will warrant no other conclusion than that she died a natural death. This opinion I found on the fact of no extraordinary peril having been incurred, and on the testimony taken at Honduras, which I think is to be-preferred to that taken here; those searching for an infirmity, known to exist somewhere, were more likely to discover defects than these, who gave her a cursory examination for the purpose of recommending her to a purchaser, and of repairing such defects as occasionally fell under their observation.

The cases of Lee v. Beach and of the Mills frigate, were attended with circumstances much more favorable to the owners than the present case. In the former, the vessel had been, as was supposed, completely repaired immediately before sailing from the Thames, and was discovered to be unsound before she reached Portsmouth. In the other, the ship had not only been put into dock and repaired, previous- to her departure on her outward bound voyage to the West Indies, but was, while there, again surveyed by six sea cap tains,, and reported to want caulking only, when she would be sufficient to carry a cargo of sugars to London. Yet, in both these cases, were the underwriters discharged on the point of seaworthiness. 2 Marsh.368; Park, 221.

I am of opinion, the verdict ought to be set a side, and a new trial awarded on payment of costs.

Livingston, J.

having been concerned in the cause, gave no opinion.

On the point of seaworthiness, new trial granted.

       Where there is no warranty of neutrality, nor any character of the yessel, the insurer takes all risks, belligerent as well as neutral. Siting and mothers. Scott & Seaman 2 Johns. Rep. 157. A disclosure, therefore, of the clearance, perfectly nugatory. If a policy be in general terms, “ on goods on board the ship coled the “Hermon,” without any addition of country, and not represented as of any particular country at the time of signing the policy, it is not necessary that she be furnished with documents in conformity to treaties between a foreign state and her own nation. Davison v. Atty, 1 Bast, SST.

       The principle of this decision, as to tile effect of a clearance to a port different from that of destination, has been confirmed in the case of Takot v. Marine Insurance Company, 2 Johns. Rep. 130. It was there held not to make the voyage different from that insured, when done to avoid cruisers; and that the statement of the master in his protest, that the voyage was to the port for which he cleared, was equally inefficient, if the reason for so doing was explained. As to concealment, see Ely v. Hallett, 2 Caines’ Rep. 60. n.


author: By the Court.

text:
    Abjo againsl Monteiro.
    Practice on removing suits against aliens, into the circuit court of the United States.
   By the Court.

If an alien defendant file his petition, &o. to remove the suit into the circuit court of the United States, at the time of filing special bail, he is in season, though the bail may have been excepted to.

       So in ejectment after a judgment by default against the casual ejector, if the landlord be an alien and then let in to defend. Jackson, ex dam. Cantine and others v. Stiles, (George Clark, tenant,) 4 Johns. Rep. 493. If the application be in a suit between citizens of the United States, the affidavit must expressly state that one of the parties is a citizen of another state. Carp v. Vermilye, 3 Johns. Rep. 145. See Bedmond v. Bussell, 12 J. R. 153.


author: Per Curiam.

text:
    *Jackson, on the demise of Hogeboom, against Stiles; Griffin, tenant in possession.
    After service of a declaration in ejectment on a tenant, though it may be a totally informal one, it is sufficient to set'him on inquiry, and if a rule to show cause why the plaintiff should not amend be granted, affixing in the clerk’s office is good service on the tenant. If proceedings be commenced for lands to which a title is awarded by the commissioners for settling disputes to lands in Onondaga, within three years after, it is sufficient, though they may be faulty, and require amendment after the three years, to entitle the plaintiff to proceed.
    A title to the premises in question had been awarded by the commissioners appointed to settle disputes to land, in the county of Onondaga, to the lessor of the plaintiff, who had served declarations on the tenants, with the usual notices annexed. The declarations, however, contained blanks for the towns and counties, which, at the time of service, were not filled up, nor were they, in the copies annexed to the affidavits of service and filed with them, on which the usual rule was entered. The declarations were served on the tenants within the three years allowed by law for prosecuting the titles awarded, but they were now elapsed.
    Spencer,
    on these facts, (disclosed by the affidavit of the plaintiff’s lessor, which stated also the services having been made with the full intent of carrying into effect the actions instituted,) moved for a rule against the tenants to show cause, by the first day of next term, why the declaration should not be respectively amended by the insertion of the names of the towns and counties, and that fixing up the rul'e in the clerk’s office should be deemed good service.

      Emott.

    Are the tenants to take notice of declarations which are mere nullities, void in themselves, and to which they are not parties ? They have not appeared, they are not in court, and John Stiles is the only defendant to the suit that can be known by the record.
   Per Curiam.

Notice having been served on the tenants,

it was not enough to put them on inquiry. There is time enough for them to come in if they please.

Motion granted.

       See ante 21, Jackcon v. Reynolds. 154, n. («) Webb v. Wilkie. Post, 251 Jackson, ex dem. Mnch v. Kough.


author: *Per Curiam.

text:
    Cole against Stafford.
    The want of a, stamp to an insolvent’s discharge cannot be urged as a reason to show it not duly obtained and prevent the exoneration of his bail Fraud only can affect it.
    In this cause the exoneration of bail, whose principal had been relieved under the insolvent law, was opposed on the ground of the discharge not having been duly stamped according to the act then in force.
   *Per Curiam.

We cannot go into it; the act [*250] makes the discharge conclusive, except in cases of fraud; the matter was before the court below, and they were the proper judges whether every thing was regular or not.


text:
    Abeel against Wolcott, who is impleaded with Van Norden.
    A -writ of inquiry, in the possession of the plaintiff not returned, and on ■which no inquisition has been taken, wifi not be set aside; as the plaintiff may sue out a new one.
    Van Vechten, on behalf of the plaintiff, moved that the writ of inquiry, and proceedings stated in the affidavit on which he applied, should be set aside, and a writ of inquiry issue de nova.

    The affidavit set forth, that by an agreement in writing entered into between the attorneys of the parties, it was stipulated that on the execution of the writ of inquiry every defence which could have been made, had a trial taken place, should be availed of; that both sides should have the same liberty of excepting to the admissibility of evidence, reduce their objections to writing, and make a case in the same manner as if the cause had been heard at the circuit. That the evidence of each party having been gone through and closed, the attorney for the plaintiff went home, after which the jury called in Wolcott’s attorney, and asked him if a verdict should go against Wolcott, whether he could recover his proportion against Van Nor-den ? and whether, if it should be against the plaintiff, he could carry it before the supreme court ? To the first of which questions, Wolcott’s attorney answered no; and to the latter yes; in consequence of which a verdict was rendered for the defendant, but the writ had never been returned, and was handed to the plaintiff’s attorney without any inquisition annexed.
   Per Curiam.

The application is to set aside a writ of inquiry, when there is none before the court. There is no return, no inquisition, and nothing to set aside. There was a written agreement, which does not appear to have been complied with. The plaintiff is in possession of his own writ of inquiry, and we see no objection to his issuing a new one; for as the writ is not before us, we cannot grant him the effect of his motion as to setting it aside.

Motion denied.

       See next p. Van, Der Mark v. Jackson.


author: Per Curiam,

text:
    *Jackson, on the demise of Finch and others, against Kough.
    After six years’ service of declarations in ejectment, court will on terms giro leave to amend by adding new demises.
    Declarations had been served in these causes nearly six years ago.

      Van Vechten

    moved to amend by inserting several de mises from different lessors.

      Metcalf

    opposed it on the ground that it might vary the tenant’s defence.

      Van Vechten

    observed, that in the Warren-Bush causes, the same thing had been done. If the defendant relinquisli his defer ce, then all the costs heretofore incurred are to be paid; if he abide by it, then there is no injury done. The costs in the first case must be paid up to the day. This the plaintiff is willing to do, and accept any plea so ■ihzi the case nr/ht be brought on at the next circuit.
   Per Curiam,

Amend on those terms.

Motion granted.

       See ante, Webb v. WiUcie 154, e. (a.) Anon. 2 Caines’ Rep. 261.


text:
    Van Der Mark against Jackson, on the demise of Ostrander.
    The defendant in error cannot non pros the plaintiff's writ before it is returned.
    In error. Judgment having been entered in the court of common pleas for the county of Ulster, on a verdict for the now defendants, the present plaintiff brought his writ of error returnable in this court. To this the clerk of the common pleas made his return in the manner said to have been usually practised in that county, by annexing a transcript of the record, and delivered it to the now plaintiff’s attorney, who sent it back with directions to annex the original record. This was not done, but the writ redelivered to the plaintiff’s attorney with only the transcript returned.
    The defendant, without any service of a scire facias guara executionem non, and, without giving any rule to assign errors, non grossed the plaintiff’s writ before it had been returned and filed, served him with a copy of a bill of costs, and sued out a writ of possession. the judgment of non pros for irregularity, and that if any writ of possession had been issued, a writ of re-restitution be awarded.

      Oardinier,
    on affidavit of these facts, moved to set aside

         A writ of error may be nonprossed for want of alleging diminution; if there be no rule for diminution, the next step is a rule to assign errors, without giving of which a non pros cannot, in that stage, be signed.

   *Per Curiam.

As the writ was rever returned, this court was never in possession of the cause. Whatever has been done here, must, therefore, be set aside. See Leith v. Mac Ferlan, 4 Burr. 1772.

Motion granted.

        Ante, 250. Abeel v. Wolcott. The court refused to quash a writ of error because the transcript was not returned and filed. Aeonrt v. Swift, 1 Ld. Raym. 329.' It would seem that before the return of a writ of error application to quash it must be made to the court from whence it issues, after the return to the court in which returnable. Lloyd v. Slutt, Doug. 350. In which case the writ must be entered on the roll, before the defendant can move to quash. Kent v. 6 Mod. 138. See also Lewis Griswold, 1 Wend. 292. Morris v. De Witt, 5 Id. 71. Ferguson v. Jones, 12 Id. 241.


text:
    Phelps against Eddy.
    If a defendant move for judgment of nonsuit contrary to good faith, the court will make him pay the costs of opposing.
    Woodworth, on an affidavit stating that issue had been joined in this cause in November, 1801, and noticed for trial at the last circuit for the county of Columbia, but not brought on, moved for judgment as in case of nonsuit.

      Williams

    read a counter deposition acknowledging the notice, but adding that the attorney for the defendant did not attend; that' his counsel, however, was there, with whose consent an agreement was made between the agent for the defendant and the plaintiff’s attorney, that the cause should not he brought on before the Friday in the second week of the circuit, on the Thursday next preceding which day the court adjourned; that it was impossible to bring on the trial during the circuit, because, in consequence of the agreement entered into, the plaintiff had sent his witnesses home, and they were not to return until the Friday appointed.
   Per Curiam.

Let the defendant take nothing by his motion, and pay the plaintiff his costs for opposing.

Motion denied, with costs.


text:
    Russel against Ball and others.
    Service on an agent of an attorney plaintiff is good. Accidents do not excuse from costs.
   The court ruled in this cause, that service on the agent of an attorney plaintiff, is as good as in any other suit, and that it need not be personal. Also that though unavoidable occurrences may prevent judgment as in case of nonsuit, yet they will not, separately considered, excuse from payment of costs; for the misfortune of the plaintiff ought to be borne by himself, and not work a prejudice to the defendant. See ante, 22.

       See New York Code of Procedure, ». 1Ay t-j.


text:
    Jackson, on the demise of Green and others, against Billings
    Limits are allowable to persons in execution undo: an attachment fe costs.
   The defendant was a prisoner with the privilege c1 the limits of the jail of New York. While so is w ■•<.- ["*253] finement, *attachments were issued against him in this and fifteen other suits, for contempts in not paying costs pursuant to an order of court. On their be ing lodged against him, the sheriff committed him to close custody, under an idea that an attachment for a contempt was in all cases a criminal process, and the defendant there fore, not entitled to the indulgence of the limits.

The case was now submitted to the court, whether the defendant was within the meaning of the privilege. The Court were unanimously of opinion that he was, on giving such security as the law requires.


author: Lewis, Ch. J.

text:
    Herrick against Manly.
    A plaintiff, who delivers to a constable a writ against the defendant in lua own suit, on which the defendant is taken and imprisoned on the order and direction of the plaintiff, cannot in an action against him, by the defendant for false imprisonment, under the general issue, give the special matter in evidence by way of justification under the statute for “ more easy pleading in certain suits, but he may do it in order to show that the defendant was not arrested by his instructions, but by virtue of a superior authority.
    This was an action of trespass for false imprisonment. The defendant pleaded not guilty. The cause was tried on the twenty-fifth day of May, one thousand eight hundred and three, before Mr. Justice Kent, at the Eensselear circuit. The plaintiff called Samuel Hawley, a constable, and proved by him, that he arrested and imprisoned the plaintiff by order of the defendant. The counsel for the defendant then asked the witness by whose authority he made such arrest and imprisonment ? whether it was not by virtue of an execution issued by a justice of the peace, delivered to him as constable, against the now plaintiff, in favor of the now defendant? The judge overruled these questions, being of opinion, that it was sufficient for the plaintiff to prove that Hawley imprisoned him by order of the defendant; and that it was not competent for the defendant to explain by the same, or any other witness, either the cause of the arrest, or the authority by which it was made.
    The defendant’s counsel then stated, and offered to prove, that Manly recovered judgment against Herrick before a justice; that execution issued against him on that judgment, and was delivered by Manly to Hawley, the constable; that Manly requested Hawley to imprison Herrick on the writ thus delivered, which he did; and that Herrick was liable to be imprisoned on the execution.
    These facts, it was contended, might properly be given in evidence under the general issue, inasmuch *as the defendant came within the statute for the more [*254] easy pleading in suits, &c. The judge overruled the testimony offered, and'a verdict was found for the plain tiff for fifty dollars damages.
    The case now came before the court on a motion for a new trial.

      Woodworth, for the defendant.
    Two reasons may be urged why the present verdict should be set aside. First, the judge refused evidence proper in mitigation of damages. Second, he overruled that which was proper in justification. As to the last position, it may be doubted whether the defendant could justify according to the statute (21st March, 1801, c. 47. 1 Bev. Laws, 234,) “for more easy pleading in certain “ suits,” though he certainly must be allowed to be within the spirit of it. The words are, “If (Sec. 1,) any action upon the case, trespass, battery, or false imprisonment, be brought against any sheriff" &c. or any other person who in their aid or assistance, or by commandment, do any thing, &e., it shall be lawful for every person aforesaid to plead thereunto the general issue, and give the special matter in evidence.” By a liberal construction of ihis act, it may well be said, that Manly acted “ in aid, and by commandment,” of the justice. An execution had issued ; it was delivered over to the present defendant by the justice, to be by him transmitted to the constable. The orders of the defendant, for the arrest and imprisonment, were nothing more than a repetition of what the justice commanded him to say. On the other point, the evidence must be considered as clearly proper to have been received, and the rejection, therefore, not warranted. Whether Manly had a substantial .defence to defeat the action or not, ■could be known only by disclosing facts, which would present a different case than that stated by the plaintiff. They ought, then, to have come before a jury, as a measure of damages. If asked whether the imprisonment was made under a lawful authority, or of his own will, the answer, according as it was given, would lead the jury to very different conclusion. Had it been done, the plaintiff in this case would not have been entitled to more than no-[*255] minai damages. *Suppose the action assault and battery, and the defendant, neglecting to plead son assault demesne, rests on non cul. At the trial the plaintiff proves an assault, but the same witness can testify that the plaintiff struck first; can it not be shown in evidence on the part of the defendant? Though this might not justify, it would greatly mitigate. The question on the trial, on the part of the plaintiff, “ Did you imprison the plaintiff by order of the defendant?” The question on his part was, “Were you authorized to do so?” The answer would have been “Yes 1 I have the execution to show;” but this was not permitted to be done. Whether this would have amounted to a justification or not, is immaterial; all that was wanted was, to show that the plaintiff was entitled to nominal damages only, and to reduce them to that. Again, suppose an officer acting under a void process, and the plaintiff proves an arrest, would not the court allow the defendant to show the process, though it was an illegal one ? This, it is true, would not be a justification, but it would be a mitigation. Therefore, in cases like this, the application is to the discretion of the court, and they will see that justice be done to the party aggrieved, when there has been an action against all conscience. Instead of six cents damages, 50 dollars have been given. This is not one of those cases where the court refuse new trials, because the sum recovered is so inconsiderable that it would be absurd to have recourse to another. The reason does not apply here, because, allowing the verdict goes the same way, the court are not sure the result will be the same: six cents only may be given, and then costs will not follow, unless the judge certify. But, as the verdict may be different, the court surely will never presume both that the verdict shall be similar, and that the judge will certify also. There are many circumstances to induce a new trial; there has not been a full disclosure of facts; the whole truth has not been told, and, therefore, justice has not been done.
    Allen, contra.
    On the point first argued, though the last that was made, it is to be observed, that the statute *of our state is a transcript of that of James; [*256] the authorities, therefore, on the construction of that, will govern in the consideration of the present case. The defendant, to avail himself of that statute, ought to show that he is ah officer within its meaning; that he was acting by virtue of an authority from the justice, or in .his aid, or by his command. If he does not do this, he cannot avail himself of the statute. Money et al. v. Leach, 3 Burr, 1742. Further, if the defendant is not shown to be liable, in consequence of neglect in complying with the justice’s command, he is not an officer within the meaning of the law. Doug. 307.  It is not stated that he received the execution from the hands of the justice; nor that he was an officer, nor acting in pursuance of any authority, nor in aid. It does not appear by what means the execution came into his hands. If he means to shelter himself under the justice of the peace, he must show a connection or privity between himself and the magistrate. This can only be done by pleading right. If justice has not been done, it is the party’s own fault. His mispleading is the source of his complaint. When the constable was asked whether he did not proceed upon an execution, it was a justification; and as no notice had been given that it was intended to be relied on, the plaintiff was not prepared, and might have been prevented from doing away its force, by showing it amounted to nothing. Hot, therefore, having done what the law requires in such a case, but relying on the general issue, the defendant is now precluded. It was enough for the plaintiff to prove that the defendant did imprison. This was all that could be thought necessary; the plaintiff rested his case at that point, and could never imagine it would be attempted to introduce a justification, of which no notice had ever been intimated. The complaint, therefore, now made, of injustice having been done, could never have existed, had the defendant adhered to the rules of practice. The testimony, therefore, was properly overruled, because, under the general issue, notice of justification ought to have been given. The witness having been the plaintiff’s, does not alter the matter. If the defendant is about to [*257] draw out from *him testimony not admissible, it is the same thing as if endeavored to be given by a witness on the part of the defendant, (see note, ante, p. 255,) and the plaintiff has a right to object. The court will not open a case again, where the expense pf going to a second trial will amount to as much as the damages given.

         The general rule is, that matter of justification must be pleaded. Bull. N. P. 17. Co. Litt. 282. b. But see Bingham, v. Garnault, Esp. N. P. 317, where one of the plaintiff’s witnesses was, on a cross-examination by a defendant in an action of assault and false imprisonment, allowed to relate what was said at the time in mitigation.

       That was an application to enter a suggestion on the roll, that the defendant was a constable, to entitle to double costs, the verdict having been found in his favor. By our law the jury who try the cause, asset» tbn treble damages given. Sec. 2.

   Lewis, Ch. J.

delivered the opinion of the court. An application is now made for a venire de nova, on the ground of misdirection on the second point of defence.

The defendant having been the mere bearer of the writ (which was an execution in his own suit) from the justice to the constable, can neither be considered as a - bailiff, or deputy, *within the letter or spirit of the [*258] statute, and, of course, not entitled, under the general issue, to give the special matter in evidence, by way of justification. The testimony, as it was offered, was, therefore, properly rejected. There is, however, a point of view, under which, had it been presented, it would have been proper, and ought to have been admitted. The only ground on which the liability of the defendant is contended for is, his having directed the officer, when he delivered him the process, to arrest and imprison the plaintiff. If, then, it could have been shown that the arrest and imprisonment was not a consequence of his instructions to the officer, but in pursuance of a competent and paramount authority, his plea would have been substantiated, and a verdiet would have passed for him. For if the arrest and imprisonment was the effect of any other cause than the instructions he gave the officer, he was, emphatically, not guilty, and it was not a case for justification. We are, therefore, of opinion, the verdict be set aside; but it must be on payment of costs, as no misdirection appears. See Schermerhorn v. Tripp, 2 Caines’ Rep. 108. n.

New trial, on payment of costs.

       See also Code of Procedure, s. 149, et seq.