author: KENT, J.

text:
    Simonds against Catlin.
    An attornoy for the plaintiff in a suit, purchasing under an execution in it is a purchaser with notice of all irregularities in that suit. A fi. fa. issuing into a different county than that where the venue, is laid, without a testatum, is void. So is a fi.fa. tested out of term. An estate will not pass by a sheriff’s sale without deed, or note in writing, signed by the sheriff. Sheriffs’ sales are within the statute of frauds. A return by the deputy sheriff, in his own name, as deputy sheriff, is not a return by the sheriff
    This was an ejectment for lands in the county of Onondaga. Upon the trial the plaintiff produced the exemplification of a judgment of this court, in the cause of Levi Barker against the defendant for debt, and entered of the ..term of July, 1800, in which cause the venue was laid in Albany. He further produced the exemplification of a fi. fa. directed to the sheriff of Onondaga, and tested the 9th day of August, 1800, commanding him to levy the debt and costs of the above judgment, and which execution contained an endorsement of being received by the sheriff on the 4th of October, 1800. It also contained a return annexed, in the words following, viz.

      “ I, Levi Sherman, under sheriff to Elnathan Beach, Esq. late sheriff, deceased, do, in pursuance of the law, and in consequence of the death of the sheriff, return, that the said sheriff sold at vendue, all that farm or tract of land in the town of Pompey, in the said county, in the occupancy of the defendant, some time in January, 1801, and before the 15th, to one Ebenezer Butler, jun. he being the highest bidder, for 26 dollars. That the said Butler did not pay the money for the same; and by order of the said sheriff, I did, on the 22d day of January aforesaid, expose the said land to sale again, and that Joseph Simonds purchased the same for 50 dollars, he being the highest bidder. That the said sheriff died on the evening after the vendue last aforesaid, and before the said writ was returned. And I, the said under sheriff, do make this return this 23d January, 1801.
    “ Levi Sherman.”
    The plaintiff further proved that the defendant, at the time of the sale, and at the commencement of the suit, was in possession of the premises. The defendant then moved for a nonsuit, and was overruled. He then offered to prove that the sale to E. Butler, jun. was not a ready *money sale, but at a credit; and that Butler had always been ready to pay, and that the second sale was made at the solicitation of the lessor of the plaintiff, who was the attorney in the original cause, without any notice by advertisement, and on his indemnity to the sheriff, who was then on his death-bed, and incompetent to attend to his business, and that the lessor of the plaintiff knew of the previous sale. The defendant further offered to prove, that the endorsement on the execution was made in May, 1802, at the request of the said lessor; but the testimony was overruled. The defendant then offered in evidence, a deed from the said Elnathan Beach to the said Butler, for the premises, in pursuance of the first sale, bearing date the 7th day of August, 1801, and to which deed was annexed a certificate of proof of the same before a master, by the acknowledgment of the said Levi’Sherman, that he executed the same in the name of the said Beach, and as under sheriff to the same, the said Elnathan being dead, which evidence was likewise overruled, and a verdict taken for the plaintiff.
    A motion was now made to set aside the verdict, for these reasons 1. That a ft. fa. issuing into a different county than that in which the venue was laid, without a testatum, is void 2. That theji./a. bore test out of termj 3. That there was no deed from the sheriff to the plaintiff; 4. That the return of the sale contains evidence of a void sale; 5. That the evidence offered at the trial ought to have been received.
   KENT, J.

delivered the opinion of the court. The two lirst objections go to the form of the execution, and, considering the circumstances attending this case, the plaintiff ought injustice to be held strictly to a legal title. He was the attorney who sued out the execution, and the second sale was made on short notice, if indeed any notice was given, and he himself became the purchaser. The plaintiff is, therefore, properly chargeable with notice of every irregularity attending the execution. Prior to this motion, a rule was granted to amend the fi.fajoj making it a testatum; but as the rule was granted upon the express condition of being without prejudice to the objection to be raised in this case, and which was then pending for argument, the court are justified in putting the amendment *out of view. And there can be no doubt but that the fi. fa. ought to be set aside for irregularity, on the ground of the first objection, as the cases of Allen v. Allen, and Brand v. Mears, (Bl. Rep. 694; 3 D. & E. 388; see also Barnes, 209,) go that length even after execution executed.

The second objection to this y?, fa. that it bears test out of term, is equally well taken. 2 Salk, 700; 7 Mod. 80; Latch, 11; T. Jones, 150; 1 Stra. 137, 138. The process, for that reason, is held to be void, and the party suing-it out cannot take advantage of it, although it may justify the sheriff, and if the case be within the reach of an amendment, yet as the amendment must always be a matter of sound discretion, we should not be inclined to grant it-in the present case, for the reasons suggested.

The next objection goes to tbe merits of tbe case, and is founded on tbe want of a conveyance from tbe sheriff. This is a question of importance and difficulty. It has been attended with doubt and embarrassment in our minds,’ but we have come to tbe opinion, that tbe estate of a defendant cannot pass at a sheriff’s sale, unless by deed or note in writing, to be signed by tbe sheriff, as tbe party or agent who passes the estate.

Tbe act directing the sale of real estates on execution, is rilent as to a conveyance from the sheriff; and yet a conveyance upon such sales is dictated by tbe same policy that applies to all other alienations of land. Without a deed or note in writing, there would be no written document of the sale ; for, in the first place, it is not requisite to the validity of the proceedings on execution, that the writ should ever be returned; nor is it requisite, even if a return be made; that the sheriff should specify with certainty the particular hands sold, or the name of the purchaser. It would be sufficient to state, that, of the lands and tenements of the defendant, he had caused to be made the debt and damages specified in the writ, as he was thereby commanded. If, therefore, the estate passes upon the sale, without any writing whatever, the general policy of the law would, in this instance, be contravened, and would bé productive of manifest public inconveniences. In the county where the lands in "question lie, every conveyance, whereby any lands in that county may be any way affected, in law, or equity, shall be deemed *void against any subsequent purchaser, or mortgagee, for valuable consideration, unless recorded. (2 Rev. Laws, 263. The present case is not within the act, because, liere is no subsequent purchaser to contend with; but cases of that kind must often rise, and if sheriffs’ sales be not within the provisions of the act, it would work very great imposition and fraud. A purchaser would go to the records, and if he found no conveyance from the defendant, he would naturally conclude he might purchase in safety. But if a sheriff’s sale is to defeat him, be would in vain seek for tbe evidence of it. Tbe purchaser from the sheriff has nothing to show. There is even wanting the livery of seisin, which, in the simplicity of ancient times, and before writing was much in use, was held indispensable to the transfer of an estate. He could only ascertain the fact of the sale by the sheriff, from searching after, and examining, those who may happen to have been eye-witnesses of the transaction. We cannot think that the law intended to induce such inconvenience and uncertainty. If we were to judge of the sense of the legislature, from the various other cases in which the law is explicit, and which are cases in pari materia, it would leave no doubt on this question. 1 Rev. Laws, 298, 299, 802. All sales by the surveyor-general, at auction, by order of the commissioners of the land-office; sales of land by order of the court of probates, for payment of debts; sales at auction by loan-officers, of lands mortgaged to them, find sales by sheriffs for quitrents, by virtue of process from the exchequer, (and this last is a case perfectly analogous to the present,) are required to be completed by a formal conveyance from the public offices. Vol. 1, p. 324, 274, 280, 289, 295, 610. It appears to us that sheriffs’ sales must be within the statute of frauds, which declares that no estates of freehold, or terms of years, shall be granted, but by deed or note in writing, or by act and operation of law. 1 Rev. Laws, 79. We need not undertake to show that a sheriff’s sale is not an act and operation of law, within the meaning of this statute. These words are strictly technical, and refer to certain definite estates, such as those by the curtesy and dower, or those created by remitter 1 Yes. 221. It has been said by Lord Hardwicke, that a judicial sale of an estate took it entirely out of the statute. The reason why it is out of the statute we do not so well comprehend ; it is not because the sale is at auction, for it is settled that *those sales, if they relate to land, are within the statute of frauds. Nor does a sheriff’s sale appear to us to be, in its own nature, free from all danger of introducing fraud, or perjury, and so, not within the mischiefs intended to be prevented by the statute.

The case in which Lord Hardwicke is said to have ruled as broadly as stated, is quite obscurely reported. 1 Bos. & Pull. 307; 1 Esp. 101; 1 Pow. 271, 272. The agreement must have been made before the' master, or acquiesced in, in court; and it seems to have been more like a consent upon record than any thing else. At any rate, we cannot consider that observation in chancery, as a sufficient authority to set aside the plain letter of the statute.

We apprehend the general practice has been different and that upon sales, under the direction of a master in chancery as well as sales by sheriffs at law, the sale has uniformly been consummated by a conveyance.

This general usage ought to have great weight in a case where a statute is susceptible of two constructions; and especially, when the literal interpretation, and perhaps the reason of the thing, is in favor of the construction adopted in practice.

The minute provisions in our statute regulating sales on execution, and even the facts in the very case before us, are sufficient to show, that these kinds of sales are equally within the danger of the mischiefs which the act sought to prevent. The court of chancery, (3 Ves. 712,) itself has latterly admitted that it had gone rather too far in permitting part performance, and other circumstances, to take cases out of the statute of frauds. We are of opinion, therefore, that a sheriff's sale is within the statute offrauds.

There was an ancient principle of the common law, that would, if it applied, have superseded the necessity of a deed. It was a rule, that where a thing took effect out of a naked power, or authority, it was good without deed; but where a thing took effect out of an interest, there it must be by deed, if incorporeal; and by livery, if corporeal. In pursuance of this rule, it hath been held, that if executors be ordered in a devise to sell land, they may do it by deed, or by parol, because the vendee takes under the devise, and not under the conveyance of the executors ; according to the principle, that whoever claims under the execution of a power, must make *title under the power itself. Whether this principle would, or would not, have applied to the present case, we need not now examine, for admitting that it did, we are satisfied that the statute of frauds has done it away.

The only remaining inquiry upon this head is, whether the return of the under sheriff was not a sufficient deed, or note in writing, within the act ? But there are several objections to this return. In the first place, it is not, in pursuance of the statute, a return in the name of the sheriff. It is expressly a return in his own name. When a man acts in contemplation of law, by the authority, and in the name of, another, if he does an act in his own name, although alleged to be done by him as attorney, it is void. In the case of Frontin v. Small, the attorney executed a lease in her own name, although stated to bo made for and in the name of the principal, and the lease was held to be void, because made in her own name. This case was recognized as good law, so late as the case of Wilkes v. Back. This return is not, therefore, an act of the sheriff, of which we can take notice. But admitting it to have been made in the name of the sheriff it could not be a sufficient deed, or note in writing, of the sale, because it has not the requisite certainty. It does not appear what estate was sold, whether an estate for years, for life, or in fee, nor is there any certainty a's to the thing sold. It is stated to be all that farm, or tract of land in Pompey, in the tenure and occupation of the defendant. But there is no kind of estimation of the quantity of land sold, nor in what part of the town it lays, or how marked and bounded. We do cot mean fo be understood to say, that a note in writing of a sheriffs’ sale must be precise as to the quantity of acres, and as to the metes and bounds, but the thing sold must, in all cases, be specified with so much precision as from the description it can be reduced to certainty, and especially in the case of sheriffs’ sales; for it was decided, (Jackson, ex dem. Jones, v. Striker, October term, 1799;) that at such sales no property could pass, but what was, at the time, ascertained and declared. This appears to us to be an excellent rule to prevent fraud and speculation at such sales, and we should be sorry to see it impaired.

A general sale by the sheriff of all that tract of land in the town of Pompey, in the tenure and occupation of the defendant, does not appear to us to comport with the rule. *It might as well have been all that tract of land in the county in his possession. We are of opinion a more definite description of the situation and amount of the land, aud of the quantity of the defendant’s interest therein, ought to have been stated, and that the evidence of this sale^ even admitting it to have been duly made by the sheriff, has not the requisite certainty.

In England, when the sheriff extends lands by elegit (Doug. 478;) he returns an inquisition, specifying the farm the number of acres, the metes and bounds, the value, &c Yet the statute of W. II. 13 E. I. c. 18, which gave the elegit, only required in general, that the sheriff deliver one half of the defendant’s land, until the debt be levied upon a reasonable price, or extent. If, however, all the objections hitherto raised had been surmounted, we are of opinion that the evidence offered on the part of the defendant at the trial, ought to have been received, to show the sale was fraudulent and void. The evidence went to show that the first sale was valid and binding, and had been carried into effect by a deed from the sheriff. That the second sale was made, at the solicitation of the plaintiff, without any notice by advertisement, and on his indemnity to the sheriff, who was then on his death-bed, and incompetent to do business .These circumstances ought to have been left to a jury, tc draw such inference from them? as the case required, and it is not to be disputed but that the whole sale may be rescinded on the ground of fraud. For these reasons, we are of opinion the verdict ought to be set aside, with costs to abide the event.

Motion granted.

        Aliter, if it had been returnable out of term, it would be only voidable. Cramer v. Van Alstyne, 9 Johns. Rep. 386.

         S. P. Jackson v. Catlin, 2 Johns, Rep. 248, affirmed, on a writ of error, (8 Johns. Rep. 520,) ruling also that, although a deed be executed by a sheriff, and delivered to the attorney for the plaintiff on a fi. fa. tobe handed over to the grantee on payment of the purchase-money, the ¿state does not pass to him till the money he paid.

       Under the Code, where an execution is issued against real property, the real property adjudged to be sold must be sold in the county where it lies by the sheriff of the county, or by a referee appointed by the court for that purpose; and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance shall he effectual to pass the rights and interests of the parties adjudged to be sold. Code of Procedure, § 287, [see. 242.]


source: Caselaw Access Project

author: Thompson, J.- Kbft, J. Lewis, Ch. J.

license: Public Domain

text:
    Kendrick against Delafield.
    In an action on a policy of insurance averring the loss by barratry, if the plaintiff show a loss from a fraudulent act of the master, the presumption of law is, that it was for his own benefit, and the assured, in order to entitle him to recover, need not affirmatively show it to have been so.
    This was an action on an open policy, “at and from New-York “ to Curracoa,” on goods shipped on board the schooner Reindeer, and consigned, by the bills of lading, to tbe captain, who bad been, together with the crew, provided by a person to whom the vessel was chartered. The declaration contained two counts, one stating the loss to be by the barratry of tbe master, the other by the perils of the sea.

    From the testimony of tbe master, it appeared that tlie .vessel, while chased and under a press of sail, sprung *a leak, in consequence of which he bore away for Santa Cruz; in running for which, he was obliged to throw overboard a considerable part of her cargo, in order to lighten the vessel; and even then the leak increased so much, that on his arrival at Santa Cruz, the water was up to the upper deck. This obliged him to run the vessel on shore, and sell her and her cargo. The latter was so much damaged, that the plaintiff’s goods sold for about one tenth of their prime cost.
    On the other hand, by the depositions of two persons, it was proved that the Reindeer was raised in seven hours after she had been sold, and that her leak proceeded from two auger holes bored in her bottom.
    The jury brought in their verdict for a total loss. They were, however, requested by the judge to inform the court, whether they found the loss to be from the perils of the sea, or the fraud of the master ? To this they answered, from the fraud of the master. They were then asked whether it was done for the benefit of the charterer ? To establish this fact, they said, the evidence was not sufficient. They 'were then interrogated whether, in their opinion,. they thought the evidence sufficient to show that the fraud was committed for any purpose of the captain’s ? To this they returned, there was not enough to enable them to determine who was to be benefited by the fraud.

      After tbe verdict thus rendered, a person of the name of Foster informed one of the owners of the schooner, that if he was not paid by him the amount of a debt due from the charterer, he would disclose the whole fraud, and tell where the very auger was bought which had bored the holes in the bottom of the Reindeer.
    On these facts, and this subsequent discovery of testimony an application was made to set aside the verdict, and grant a new trial.
    1. Because, to constitute barratry, it must appear that the fraud was committed for the benefit, or expected benefit of the captain.
    2. Because, where a shipper consigns the shipment by the bill of lading to the captain, he cannot commit barratry by embezzlement of these goods.
    3. Because new testimony has been discovered since the *trial, which it was hot in the power of the defendant to have obtained before.

      Pendleton, for the defendant.
    Barratry must be some act-done by the master for his own benefit,(a) to the prejudice of his owners, and so proved, 2 Marsh. 445, 456. n.
      . It must be with an intention to defraud the owners. Phynn v. Boy. Ex. Ass., 7 D. & E. 505. Moss v. Byrom, 6 D. k E. 379. Hague v. Bordieu, 1 D. & E. The finding, therefore, wants tKis ingredient. To fix the loss on tha underwriters, it should state on whose account. The return of the master to be examined, is a proof that his actions were for the benefit of his owner — the owner pro hoc vice. Secondly, when the character of the captain is changed into that of a consignee, he becomes the agent of his. principal, the shipper; and though he may be liable for misconduct, it cannot be barratry so as to charge the underwriters. This principle is recognized in Fitzherbert v. Mother, 1 Marsh. 340, where the act of the agent exonerated the insurer, though the assured was perfectly innocent of the misrepresentation ; but in the present case the owner may well be presumed to have colluded for the fraudulent purpose. The bill of lading vests the property in the consignee, when possession of the goods passes with the bill. The consignor is then a cestui que trust, and the consignee accountable only on the equitable principles of the law. Had the goods been sold by the master at any intermediate port, the sale would have bound the property. The character of captain is lost in that of consignee ; for the owners of a vessel are liable for their captain’s acts only so long as he continues a simple carrier on their account. 2 Marsh. 444, after mentioning the Boman law, goes on and states that if the captain be commissioned to dispose of an adventure on board, the insurer of such adventure shall not be answerable for the loss of it; for this would make the insurer answerable to the insured for the faults of his own agents. The expectation of fully showing, on a new’trial, the fraud, from the testimony discovered, will, at least, induce the sending back for another investigation.

      Hoffman and Biggs, contra.
    The affidavit of newly discovered testimony is too loose; it ought to have specified a time when it might be expected to obtain the witness by whom it is to be shown, and have also gone to a full belief *of its truth. The jury had the whole evidence before them; and, if they believed the captain, it was ample. The plaintiff rested his cause there. The defendant set up the fraud of the master, and as it was relied on as a defence, it was incumbent on the insurer to show for whose benefit, because that is necessary to prove it was not barratry. To constitute an act barratry, it is enough to show it a pure fraud; for every species of fraud, cheating, &c. of the master, is barratry, without the plaintiff’s proving on whose account or for whose benefit committed. Marsh. 442; Millar, 105, 153. In a count for barratry, it is sufficient to state the loss by the fraud of the master, and it is unnecessary to prove more, than is alleged. Barratry may also be as well in respect to the cargo as the vessel. Lewin v. Suasso, Postle. Die. v. 1, p. 147; Marsh. 452, 453. The ownership, therefore, of one, does not affect the other subject. Millar, 165,167. Therefore, though the fraud of the hac vice owner, or his orders, might have prevented barratry as to his goods, it will not do away the effect as to the property of another, or an innocent shipper. Marshall, in page 444, where he cites Emerigon, tom. 1, 870, mistakes the sense of the author. Emerigon says, the captain, though consignee, may, whilst he continues acting as captain, be guilty of barratry against the cargo consigned, but not after they are on shore.
    When both characters are united, the former does not attach till the latter has expired ; for the consignee has no right over the goods till the voyage is at an end. This principle is found in cases of abandonment, where, till that period, the captain is agent for the owner of the ship, but afterwards he becomes that of the assurer. Besides, the presumption of law is that every man wbo commits a fraud does it for bis own 'benefit, and not for that of bis owners. Millar, 173. Boss v. Hunter, Marsb, 466, 467.

      Pendleton and Hamilton, in reply.

      Nutt v. Bordieu was tbe case of an innocent shipper, and yet because tbe fraud there was with tbe knowledge of tbe shipowner, it was decided not to' be barratry, though tbe sentence in France had pronounced that it was \ for it must be an act against tbe duty to tbe owner of tbe ship. The intent is part of tbe offence, and ought to be shown. Of this, tbe jury answer, there was no proof. In Boss v. Hunter, 4D.&E. 33, the act was proved to have been *done for tbe benefit of the captain. To show the character of master is sunk in that of consignee, had a shipper consigning goods to a captain brought an action against the owners for an embezzlement by the master, could there be a recovery? The argument from the innocence of the shipper is of no force, because barratry is a technical offence. Want of seaworthiness avoids a policy, though certainly no crime in the shipper. The contract in both cases is founded on certain fixed understandings. The as-surer being liable for barratry only when established, it must be proved by him who claims the benefit of that part of the engagement.

         Under a count alleging the loss by perils of tbe sea, if they be in truth the immediate cause of loss, the plaintiff it seems, will be entitled to recover, though the barratrous conduct of the master occasioned the loss by such perils: as if the master, while the ship is riding in safety, wilfully cut her cable, in consequencé of whicli she is driven on a ledge of rocks, and wreeked. Beymm and others v. Parish, 2 Camp. 149. Therefore, whore the loss waS stated to be by capture, proof of a barratrous capture by the collusion of the captain was held to maintain tho declaration. Arcangelo v. Thompson, 2 Camp. 620.

       Barratry is any act or conduct of the master or mariners in breach of the trust reposed in them, by and to tho injury of the owners of the ship, though intended for their benefit, and whether the master be benefited or not. Earle v. Rowcroft, 8 East, 126. But as volenti nonfttmjwria, when tho consent of the owners is shown there cannot be any recovery under a count for barratry. Vallejo v. Wheeler, Cowp. 143; Halletty. Col. Ins. Co., 8 Johns. Kep. 272. Where from gross negligence of the owner the mariners carry on a smuggling trade, in consequence of which the vessel is seized, the underwriter is discharged. Pipon v. Cope, 1 Camp. 434. Suol: negligence amounting to a consent. That the barratrous act is for the benefit of the master, is only an evidence of his fraudulent conduct. Per Aston, J., in Vallejo v. Wheeler, Cowp. 155, as explained by Lord Ellenborough, in S East, 137. See also Steinbach v. Ogden, 3 Caines’ Rep. 1, and Suckley v. Delafield, post, 222. Por a variety of decisions on barratry, by no means reconcilable, see 2 Cond. Marsh. 534, a. n.(84,)and Calhoun v. Ins. Co. Penns. 1 Binn. 293.

       Therefore it has been held, that though the master do the act for the benefit of himself and owners, it is not barratry, notwithstanding it be un-Vnown to the owners. Pools Executors v. Nesbit, 2 Dal. 137.

       In that case, however, it was expressly decided barratry could not arise between the master and shipper of goods. In the principal case, the ship was chartered by the owner of the cargo, so that he was owner ¡pro hac vice. Vallejo v. Wheeler, Cowp 143. Therefore, when the master hires the vessel for the voyage, he cannot commit barratry. Hallett v. Col. Ins. Co., 8 Johns. Rep. 272. But though a vessel be let to hire, if the owner man, and victual, and pay wages, the freighter is not owner, and a deviation by con sent of tile freighter only is barratry. M'Intyre v. Bowne, 1 Johns. Rep. 229

       So though he he supercargo. Earle v. Rowcroft, 8 East, 140.

   Thompson, J.-

The first question that appears to arise out of this case is, what we are to understand by the term barratry in a policy of insurance. In the case of Nutt v. Bordieu, (D. & E. 330,) Lord Mansfield says, barratry is something contrary to the duty of the master and mariners, the very terms of which imply that it must be in the relation in which they stand to the owners of the ship. An owner cannot commit barratry; he may make himself liable by his fraudulent conduct to the owner of the goods, but not as for barratry. It cannot be committed against the owner, with his consent, for though the owner may become liable, by the misbehavior of the captain, if he consents, jet that is not barratry. It must partake of something criminal, or fraudulent, and to the prejudice of the owner. Park. 84; Cowp. 155. We may therefore define barratry to be some fraudulent act of the master or mariners, tending to their own benefit, to the prejudice of the owner of the vessel, without his privity or consent. George Martin, the charterer of the vessel, must be considered the' owner pro hac vice, so that if any fraud has beén committed on the owner, it must be on him. The jury find that the loss was occasioned by the fraud of the master. But who was to be benefited or prejudiced by this fraud, the jury would not undertake to say; or whether committed with or without the knowledge of the owner, is not found. It appears to me, therefore, that the finding of the jury is nothing more than that the loss was occasioned by the fraud of the master, which is an imperfect verdict; that, of itself, not amounting to barratry.. The j ury, by their answers to the questions put by the court, have negatived some of the *material facts, necessary to constitute the charge of barratry. That there has been a gross fraud committed, I think manifestly appears, and to subject the. underwriter to the payment of the loss would seem to savor of injustice. If this fraud was practised with the knowledge and consent of the owner of the vessel, it would make him responsible, and discharge the underwriter. The case presents very considerable doubt and difficulty, and I think, for the purposes of substantial justice, another examination of the cause is necessary, and that a new trial ought to be granted, more especially, as some affidavits have been offered of the discovery of testimony since the trial, tending to show, though rather remotely, that George Martin was privy to this fraud.

Kbft, J.

I do not think that it is essential to be made appear that the fraud was committfejd for the benefit of the master. If the master commits a' fraudulent act, in his character of master, it is barratry. 2 Marsh. 444, 452. It is a criminal breach of duty in the relation in which ho stands to the owner of the ship. The person to be benefited by the barratry need not be made affirmatively. to appear. It is sufficient that the act was done with a fraudulent intent, and done by the captain, in his character of captain, and in breach of his duty and relation as captain. The,law will intend that it was done to the injury of the owner, until the contrary appears. Nor did the consignment of' the plaintiff’s cargo to the captain alter the case. The fraud of the master was not committed in the character of consignee of the plaintiff’s cargo, but in his character of master of the vessel. This is the true distinction on the subject, and which reconciles the doctrine in Emerigon with the plaintiff’s claim in the present case. The captain did not, and could not, lay aside his character and responsibility as master, until the vessel had performed'her voyage, and arrived at the port of destination. The accidental circumstance of the character of consignee being added to that of master, could not qualify or alter his acts as master; the two characters were totally distinct. The only question in this case that remains, is on the discovery of new testimony. I have examined the affidavit of "William Wilmerding; it relates some information he received of Peter Yan Wagener, who told him that one Foster, whose residence is unknown, *had called on him for some money that George Martin, who had chartered the schooner for that voyage, had promised to pay him, and threatened to disclose the whole fraud relative to the loss of the vessel. This affidavit does not even charge Martin with a concern or privity in the fraud, and leaves it only to be implied from the threat. It is a question whether even barratry, with the concurrence of the owners of goods, will exempt the insurer of goods belonging to an innocent shipper. Miller, 165, 167; Marsh. 452. The English authorities do, however, look very strongly to the opinion, that the insurer would not, in such case, be re-Bponsible. Assuming tbe law to be so, the question is on the weight of this newly discovered testimony; and, in my opinion, the evidence is altogether too loose and uncertain. There is nothing positive, or from which we can deduce any conclusion. To grant a new trial on this suggestion merely, would be to allow the party to fish for testimony, and would introduce endless contention on the subject of new trials. Even if Foster’s testimony was more definite, there is no reasonable ground to expect it could be procured. He was probably a seaman, and it appears that it is not known where he is, or where he resides. I am of opinion, therefere, that the plaintiff is entitled to judgment, and that the motion for a new- trial be denied.

Lewis, Ch. J.

I concur in the opinion last given. It is immaterial who was owner in this case. For, as the fraudulent act does does not appear to have been done for the benefit of any particular person, the law will necessarily presume it has beén for the advantage of the perpetrator.

LiviNGSTON and Spencer, Justices, gave no opinion.

New trial denied.

         As to decisions concerning barratry, see M'Intyre v. Bowne, 1 J. R 129; Steinbach v. Ogden, 3 Cai. R. 1; Hallett v. Col. Ins. Co., 8 J. R. 272; Thurston v. Caine, 3 Cai. R. 89; Cook v. Com. Ins. Co., 11 J. R. 40; Grim v. Phœnix Ins. Co., 13 J. R. 451; Vos v. United Ins. Co., 2 J. C. 180; Grim v. Phœnix Ins. Co., 13 J. R. 459; S. C. ib. 460; Suckley v. Dalafield, 2 Cai R. 222.


author: Spencer, J

text:
    E. and C. Goold against The United Insurance Company.
    An assignment of part of the subject insured to a belligerant, though after capture, is a breach of a warranty of neutral property.
    This was an action on a policy of insurance, on account of Patrick Ferrall, a Danish subj ect, at and from the Ha-vanna to Kingston, in Jamaica, upon twenty bags, containing 20,000 Spanish milled dollars, warranted to be Danish property. The money was part of the returned proceeds of a cargo of negroes brought from St. Thomas, in the Danish schooner John, and now shipped in *her on the voyage insured. For this sum two bills of lading were, on the 10th of January, 1798,'signed, one by Thomas Taggart, the other by William Bayley, but both of the same tenor and date, purporting to be for 20,000 dollars, shipped by Henry Amoresta on board the schooner John, William Bayley master, bound for St. Thomas, on account and risk of Patrick Ferrall, a burger and inhabitant of St. Croix, he paying freight, nothing, being owner’s goods. On the 12th of the same month, the John sailed on the voyage insured, with a Danish register, and other documents on board, showing her Danish property. On the 20th she was captured and carried into St. Jago de Cuba, where she .was libelled in an admiralty court established there. In the proceedings it appeared that the John had-not any custom-house papers on board, showing her destination to be for St. Thomas, nor any thing from which it could be gathered, except the bills of lading before mentioned, both of which-were at the time of capture delivered up; that the captain, in answer to an interrogatory put to him, said, the vessel was in the service of the Spanish government, under an agreement to furnish them with ne-groes, and of course entitled to enter and depart without pacers; that by a letter on board from Amoresta to Ferrall, it was mentioned that the captain bad consigned himself to Amoresta, who by the John, had then forwarded the 20,000 dollars, as a part of the sales of his negroes; that two of the seamen swore, at the time of the capture Thoms Taggart commanded the vessel, and then passed for Bayley, directing the crew so to call him; that this was contradicted by a positive affidavit made by Bayley, setting forth that Taggart was to have gone as captain, but that after-wards he the deponent was appointed, and that the sailors had been suborned and corrupted to swear as they did. These proceedings being to be forwarded to the tribunal of captures at Cape Francois, Bayley, on the 6th of February, in order to interpose his claim for vessel and cargo embarked for that place on board the privateer, but was captured and carried into Kingston, in Jamaica. On the 12th' of the same month, in consequence of previous instructions regularly given, the defendants underwrote the ^policy in question, at 15 per cent, on the following communication: “ Edward Groold & Son want insurance on specie in the schooner John, Captain Balie from Havanna to Kingston, Jamaica. This vessel goes up as if bound to St. Thomas, for which island bills of lading for the money are signed, but when she gets to the east end of the island of Cuba, bears away for Kingston, Jamaica. The property Danish.” On the 20th, Ferrall, in order to secure Amoresta for the amount of advances made, transferred to him one half of the interest in the subject insured. On the 6th of March, the tribunal of captures pronounced a decree condemning vestel and cargo, as lawful prize to the captors. The sentence refers to the 12th article of the decree of the 21st October, 1744, and the 9th article of the decree of the 26th of July, 1778, confirmed by the article of the executive directory of the 12th ventóse, which ordain, “That all foreign vessels, on board of which is found a merchant’s supercargo, clerk, or major officer of an enemy’s country or of which the equipage consists of more than one third of the sailors of subjects from enemy’s countries, or. those that are not provided wit h a role d'equipage, attested by the public officers of the neutral countries where the ves seis sail from, are considered as lawful prizes.” It then goes on to state as reasons for confiscating, the want of a role d'equipage, of bills of lading, and invoices of the cargo from St. Thomas; the having given an invoice to the supercargo ; his refusal to be examined; the.having no clearance or papers on board to show the destination; the master’s passing as another person; the omission in case there had been a change of commander of having that circumstance authenticated by a document from some public officer at the port of his departure, and the answers of the captain when on interrogatories.
    A day or two after the promulgation of this decree, Bayley arrived at the Cape, where, on the 9th of March, he presented to the tribunal of captures a memorial requesting a rehearing. In this he, after pledging himself to disprove the principal facts, accounts for the want of a role dequipage of his crew on the former voyage, by saying, that his cargo from St. Thomas consisted of negroes who worked the vessel, and that, on the voyage in which he was captured, *he had one; but it had been taken from him by the English, when they made prize of the privateer which he was on board of.
    On this memorial a rehearing was had, in which the former sentence was confirmed, acHing, as a further reason, (but without noticing the want of a clearance,) that the imposition in passing for Baylev, was evident from the signature to the two petitions being signed “ Balay,” and the signature of the bill of lading “ Bayley.” That also in his petition to committee, he began to sign “Bal” instead of “ Bay.”
    After this affirmation of the judgment in the inferior court, Amoresta put in a claim for the property as his own, which was, on tbe 26th June, 1798, dismissed with costs and damages. Interest, loss, and Abandonment, were admitted.
    Upon these facts a verdict was taken for the plaintiff, subject to the opinion of the court, upon the whole matter, whether it should stand, or judgment of nonsuit be entered. But as the decision turned only on the effect of the transfer on the warranty, it is needless to detail the arguments on any other point.
    Hoffman, for the plaintiffs.
    The warranty is not affected by the transfer to Amoresta; it being subsequent to both the underwriting the policy and capture of the vessel. It is sufficient if the warranty was complied with at the time of sailing, and is not altered by any act of the assured during the continuance of the voyage. Eden v. Parkinson, Doug. 732.

       Saloucd v. Johnson, Park, 364, and admitted in Tyson v. Gurney, 3 D. & E. 477. The transfer was after the voyage had been defeated, and a technical loss induced by the capture. This, too, for the sake of recovering the property.

      Hanson and Troup, contra.
    The property warranted neutral, must be so not only at the inception, but continue so during the prosecution of the voyage, and even after capture ; for otherwise it may take away the right of the insurer after the abandonment to recover. After an original compliance with the warranty of neutral property, a transfer by the assured to a belligerant operates as a condition subsequent, and defeats the contract from that time. This distinguishes it from a want of neutrality at the commencement. In that case, as the policy never attached, the premium, *if there has been no fraud, may be demanded, but in this it cannot. The effect of such a transaction may be very prejudicial. Suppose there had been a restoration, and the vessel in proceeding on her voyage had been taken by an English cruiser, a condemnation must have ensued. The transfer, too, could not have been of a part of the insurance; it must have been for the whole of the property, as a claim was put in for the whole, which could not have been at all supported, without a proof of actual assignment.
    Hamilton, in reply.
    The quo animo must decide the transfer. If to merely secure for advances, and the claim interposed to rescue the property from the fangs of the captors in aid of the insurer, it ought never to prejudice the insured.

       This by a letter from Eerrall to the plaintiffs, dated July tto 31st, and read in the argument, is explained to mean half the insurance.

       See Furtado v. Rogers, 3 Bos. & Pull. 191, that an insurance effected In Great Britain on a Prench ship, previous to hostilities, does not cover a loss by British capture.

       This position must be taken with the qualification of “ for or by reason of any wilful act of the assured.”.,

   Spencer, J

delivered the opinion of the court. The plaintiffs’ counsel have attempted to show that the transfer to Amoresta was only an assignment of the insurance, and not of ihe vessel or money; this is a refinement not warranted by the fact: and though it be true that upon a warranty of neutrality the happening of an event -which changes the neutral character, without any act of the party, will not be considered a breach of the warranty ; yet it is equally true that the party who so engages for the neutrality of the subject insured, cannot himself change the neutral character of the subject without the forfeiture of his right on the policy. Here Ferrall, after capture, but before condemnation, assigned one half of the subject insured to one of the belligerants, and thereby infringed his warranty. It is not any answer to the objection to say that the condemnation was not on this ground ; or that this was after capture; the loss was not consummated until condemnation. The warranty has not been complied with, and the transfer might have increased the risk. On this ground, the court is of opinion that by the transfer to Amoresta, the insurers are discharged, and that, therefore, judgment of nonsuit be entered.

Judgment of nonsuit.

         Doug. Í05. The parties themselves cannot change the nature of the policy.


author: THOMPSON, J. Kent, J. LIVINGSTON, J.

text:
    Milward against Hallett.
    A master of a ship who has drawn a bill on his owner for the amount of money advanced to him to pay exporting duties on a cargo delivered to his owner, and to enable him to return home with his vessel, is a competent witness, without a release, in an action by the person lending the money against the owner, though the bill be unaccepted, as he is equally liable to both parties. A master of a ship can bind his owner by a bill of exchange drawn for necessaries.
    This was an action' on the usual money counts, to recover a sum advanced to the captain of the defendant’s ship when abroad, and for which the captain had drawn bills upon his owner, who had refused to accept them.
    *Some time in January, 1801, the vessel sailed from Philadelphia to Port Eepublican, in Hispa-nolia, under a charter party to James Yard, of Philadelphia. In February she arrived at her place of destination, had discharged her outward cargo, and taken in part of one for Europe, pursuant to her charter party, when information was received that Yard had become a bankrupt. Upon this (according to the testimony of James Hussey, the master of the vessel, who was admitted as a witness) Chambaud, the merchant in Port Eepublican to whom the ship was addressed, refused to furnish any more of her lading, and demanded restitution of that which had already been put on board. The master refusing to comply with this, legal proceedings were thereupon commenced to enforce a redelivery. THese, however, failed; but the master was, notwithstanding,' prevented from sailing with his cargo, by the French admiral, who threatened that unless the cargo was relanded, he would detain the vessel till a court from the first counsel should sit, before which time the bottom of the vessel would probably drop out. Upon this the master, supposing it best for the interest of all concerned gave up part of his cargo, retaining only 85 hogsheads of sugar, and a quantity of logwood. For the purpose of paying the exporting duties on these goods, and the necessary expenses of the ship in consequence of this deten tion, the money in question was borrowed. The voyage being thus broken up, Captain Hussey returned to New York with the ship, and delivered her, together with 85 hogsheads of sugar, and 80,000 weight of logwood, to the defendant, and rendered him a full account of all his transactions. On the part of the defendant the deposition of the mate was read in evidence. He testified that the principal part of the outward cargo belonged to Yard; that the defendant had on board 85 barrels of prime pork, and 20 of beef, over and above the ship’s stores, together with 86,000 bricks. That there was some property on board belonging to other persons which the master sold, and received the proceeds. That the freight of these must have amounted to upwards of 100 dollars. That the part of the cargo relanded by Captain Hussey was delivered up, contrary to the express directions of the defendant, which the captain had received, and showed to the witness. That *Hussey told him that the exporting duties on the sugar retained, and the expenses of relanding the others, amounted to eleven or twelve hundred dollars. The mate also swore there were no other expenses of any consequence attending the ship, except the repairing of a fore-yard, which cost about thirty-six dollars. The jury having found for the plaintiff, a motion was now made to set aside the verdict, and grant a new trial, upon the following grounds: 1. Because Hussey was (in incompetent witness, without being released by the plaintiff; 2. Because it was not in his power to bind the defendant by the contract which he made with the plaintiff.
    Boyd, for the defendant.
    Supposing the general reasoning of equal liability to be good, it does not hold in the present case. Hussey is liable to the plaintiff, in damages, to the amount of 10 or 20 per cent, on his protested bill. This, therefore, gives a preponderance of interest in favor of the plaintiff. The case from 7 D. & E. which may be relied on by the plaintiff, was not like this. It was determined on the necessity of receiving the testimony offered. But the captain could not bind his owner in this way. He can do it only through the medium -of his ship. The case shows the money was borrowed to extricate the -property of Yard, and pay the exporting duties of the sugar. The receipt of it does not give the defendant any right to it, for as Yard has become a bankrupt, it is, by the operation of the 10th section of the bankrupt law, vested in his assignees, by whom we are liable to be called on.
    Caines, contra.

      Evans v. Williams, 7 D. & E. 481, (n.) is in point. The case runs qualuor pedibus with this. The captain of an Indiaman drew a bill on his owners for money expended on account of the ship. He was held a good witness, because equally liable. The quantum
      of liability cannot be considered by the court. That would be to try the respective causes, and settle on the bench the amount of verdicts. That a master can bind his owners by a bill drawn upon them, on account of .their vessel, was settled in Sansum v. Braginton, 1 Yes. sen. 443. and in Gary v. White, 1 Bro. Pari. Cas. 284. Neces* sity requires it; for many persons will not lend on bottomry, *wbo may advance on bills. Every agent lias an implied authority to bind his principal respecting the subject matter of his agency. The appointment to the command of a vessel is a certificate of confidence by the owner, and equal to a letter of credit respecting bis ship. It is enough, if sbe be in difficulty, to authorize any one to lend. ■ The visible necessity of the vessql is all a lender is bound to look to. If she cannot depart without money, he is warranted in advancing, and is not bound to look to the application, or inquire wbetber funds be in the master’s bands. Mol. b. 2, c. 1, s. 10; Marsh. 689 ; Abbott, 121. This would be to ask a stranger to doubt the very man the owner himself has trusted. He holds him up to the world as trustworthy, and cannot say the reverse. The same principle exists in cases of executors. A man purchasing of them is not bound to see to the application. Whale v. Booth, 4 D. & E. 625, n.(a) Though the bankrupt law transfers to the assignees of Yard the property delivered to the defendant, it is subject to the lien for the amount of the exporting duties and freight.

      Boyd, in reply.
    If the master can thus bind his owners, the whole of every shipowner’s property will be at the mercy of his captain, and the consequence must be ruinous to commerce.

       If the rule antecedently laid down (Peyton v. Hallett, 1 Caines’ Rep, 367 n. (a,) respecting the incompetence of witnesses be correct, the inverse of its principle will determine their competency. When, therefore, the legal effect of the verdict will not operate to the immediate advantage or disadvantage of a person testifying, such person is a competent witness. From this principle it follows, I. That parties to the record are admissible, when it appears judicially, from the proceedings in the suit, that their liability is determined or merely possible; as in an indictment for an assault and battery, one defendant, who has submitted and been fined, for the other; (Rex v. Fletcher, 1 Stra. 633,) a co-defendant in trover, after judgment against him by default, to show that the other never intermeddled; Ward v. Haydon & Ventom, 2 Esp. Rep, 552,) so in trespass, to exculpate, but not to inculpate, liim by testifying for the plaintiff, and putting it in his power to levy all against the other; Chapman v. Graves, per Le Blanc, J., 2 Camp. 333 n.) aliter, if the co-trespasser bo not made a defendant; (id. ibid.) overruling, in this respect, Barnard v. Dawson, cited in the same case, and stated 1 Caines’ Rep. 367 n. (a,) which, however, does not seem to bo law; fora verdict and judgment, without satisfaction, would be no defence to the witness. Besides, the distinction of Be Blanc is rather shaken by Lord Ellenborough, who allowed a co-defendant in ejectment, against whom judgment had gone by default, to prove the other defendant in possession, it being amere possibility that the plaintiff would go against him alone for the mesne profits; (Doe v. Green, 4 Esp. Rep. 197,) so those in the simul cum in trespass if nothing bo proved against them; (Sty. 401,) or, if tney have made satisfaction, to prove it; (Poplet v. James, Bull. N. P. 286,) so when a witness does not appear individually on the record, though he may be one of the body who do, if it be shown that he has no kind of interest; as a mere trustee for a public charity who is one of a corporation, sued by its corporate name. Weller v. Governor, &c., of the Foundling Hospital, Peake’s Cas. 153, before Kenyon, Ch. J. In Pennsylvania a plaintiff on the record who was a certificated bankrupt, and had released his interest at the bar, was held competent in a suit carried on for the benefit of his estate, but in which liis assignees had given security for the costs; (M'Ewen v. Gibbs, 4 Dall. 137,) so when the party to the record in whose favor the rule of exclusion would operate, is willing to waive its benefit, and the other consents to be examined; as one of two plaintiffs, in behalf of the defendant; (Williamson v. Twibill & Norden, 1 Taun. 378,) in the report of which, as printed in the New York edition by Riley, the parties appear to be reversed.
      2. Persons interested in the subject matter of the suit when their interests would bo unaffected by the event, and must necessarily remain the same, whether the verdict be for the plaintiff or defendant; as tenant in fee of the inheritance to prove the lease in an ejectment, where both plaintiff and defendant claim under him; (Fox v. Swann, Sty. 482,) or an original lessor, under whose lesseo the defendant holds, to prove whether lie demised first to the plaintiff, or another person; (Bell v. Harewood, 3 D. & B. 308.) or a purchaser, who has recovered judgment against the defendant for a fraud in selling land to which he had no title, to testify in another action for the plaintiff) who had bought under the same sale; (Fairchild v. Beach, 1 Day’s Cases in Error, 266,) so when the interest is not beneficial, but fiduciary as an executor in trust, though he has acted: (Lowe v. Joliffe, 1 Black. 365; Cornwell v. Isham, 1 Day’s Cases in Error, 35,) or an assignee in trust, to show that he had no real interest, .where the conveyance is by the cestui que trust, in whose name the suit is brought. Wilson v. Speed, 3 Cranch, 283.
      3. When the interest is merely a possible or consequential, but not certain or immediate result of the verdict, as a steward of a court, to prove a fine due to tho lord on admissions during his minority, though on such tho witness would be entitled to afee; (Champion v. Atkinson, 3 Keb. 90,) or a person who expects to be a deputy to the party for whom he testifies, should he obtain an office, which he seeks to avoid in a scire facias; (Banning's Case, 1 Mod. 21,) or, on a justification in trespass that tho locus in quo is a highway, the owner of an adjoining lot who has agreed to let the defendant pass across it for a certain rent, which privilege cannot be enjoyed without establishing the road ; (Pollard v. Scott, Peake’s Cas. 18,) so where the interest is a consequential right to an office of mere authority, that is not beneficiary. The King v. Bray, Cas. temp. Hardw. 358.
      4. Where the interest in a fund is transferred; as that of a creditor who has sold his chance of recovering a debt to a third person, to testify for him. Granger v. Furlong, 1 Stra. 507; 2 Black. 1273, S. C.
      5. Where the interest which did exist becbmes impossible; as that out of the future profits of an adventure in goods which are lost before sold. Robertson v. French, 4 Esp. Rep. 248, or,
      6. Where it is in any way destroyed, as that of a borrower of money on usurious terms, to prove, after payment of the debt, the fact of usury; (Smith v. Prager, 2 Esp. Rep. 486; Pettingal v. Brown, ante, vol. 1, p. 168,) or a drawer of a bill, who has not received due notice, to prove, in an action against the acceptor, that it is paid. Mumphrey v. Moxon, Peake’s Cas. 53.
      7. Where the interest is not immediate on the fund, though the witness may ultimately be paid out of it, as a creditor of a bankrupt, who has not proved his debt, to support the commission. Williams v. Stevens, 2 Camp. 300.
      8. Where it remains unaltered, as that of a certificated bankrupt under the law of the United States, to testify in favor of his estate when it will not pay 25 per cent. Phoenix v. Bey and others, 5 Johns. Rep. 412.
      9. Where it is only in the general ability of the party to pay, and creates ao new liability to the witness, as an agent entitled to a commission on goods sold, to prove the sale and delivery; (Dixon and others v. Cooper, 3 Wils. 40,) or a creditor to testify for his debtor, though suing for the recovery of the amount of the very goods for which the debtor is liable to him. White v. Baring, et al. 4 Esp. Rep. 22.

        10. where the interest in the event of the suit is a mere possib.e, and not necessary liability in consequence of the verdict; as that of a mere liability to a rate that may be imposed, but is not in fact laid; (The King v. Prosser, 4 D. & E. 17; The King v. South Lynn, 5 D. & E. 664; The King v. Little Lumley, 6 D. & E. 157; Falls v. Belknap, 1 Johns. Rep. 486,) or to an information in the nature of a quo warranto, if the right of the party for whom called be disturbed; (The King v. Bray, Cas. temp. Hardw. 358,) or that of a sub-lessee of lands let out under a covenant for particular cultivation, to show there was no breach; (Wishaw v. Barnes, 1 Camp. 341,) or that of a person who expects to be called on for costs, but is not bound to contribute to them; (Bent v. Baker, 3 D. & E. 27,) or, who considers himself bound in honor only; (Pederson v. Stoffles, 1 Camp. 144, contra Fotheringham v. Greenwood, 1 Stra., and tho doubt expressed in Coleman v. Wise, 2 Johns. Rep. 365,) upon which point, however, the court have in a late case laid down the rule, (Trustees of Lansingburgh v. Willard, 8 Johns. Rep. 428,) that an ideal interest in a witness, if so circumstanced that it cannot be released by the party calling him, shall disqualify him as a witness for, though he may be a witness against such party: a principle that seems to recognize a legal nonentil.y, as a legal disqualification, contrary to the position that the law acknowledges only legal consequences. The rule seems also to be impugned by a more recent decision, (Gilpin v. Vincent, 9 Johns. Rep. 219,) in which the court say, that as the contribution to the suit (which was the ground of iucompetency urged) depended on the volition of the witness, and on the contingency of his being asked, and upon his sense of the general practico and principles on such occasions, “there was no fixed or certain legal interest," to disqualify, and the witness therefore competent.
      11. Where the interest is. a liability to the party for whom called, only when the other party is liable to him, as a payee to prove, for an endorsee, that the defendant, who drew the bill, had promised payment after it became due. Stevens v. Lynch, 2 Camp. 332.
      12. Where, though it be to exonerate liimselfin the suit in which he testifies, it makes him liable over; as a joint debtor, to prove that money of his co-debtor’s was in the hands of the defendant as garnishee in an attachment issued against the odebtors. M'Leod v. Johnson, 4 Johns. Rep. 126.
      13. Where the interest from liability is removed; as an owner of a vessel who has paid to a shipper of money more tha.n the amount for which bills of lading were signed and been reimbursed by his captain, to testify foi him in his suit against the shipper for the money so paid. Cortes v. Billings, 1 Johns. Cas. 270.

        14. When the witness’s liability in the suit remains unaltered, as that of a person who has sold a horse with a warranty of Ins soundness, to prove that he was so when he sold him, in an action on a similar warranty against a subsequent vendor; (Briggs v. Crick, 5 Esp. Rep. 99,) or a joint seller of lands to which he had no title, for the other sellers who were sued in an action on the case for the same fraud: (Phelps v. Winchell, 1 Day’s Cases in Error, 269,) or a commoner testifying for a prescriptive right in a fellow commoner in a particular estate, though he may have correspondent rights. Baker v. Bent, 3 D. & E. 33.
      15. When the liability is on another point than that for which called; as a deputy jailer who has taken a bond to the sheriff for the liberties, to testify for the sheriff in an action against him for an escape of a prisoner in the custody of the deputy. Stewart v. Kip, 5 Johns. Rep. 266.
      16. A witness, though liable to the defendant, if the plaintiff’s case turn out differently from what stated, is nevertheless competent to prove it, if tha defendant would still be liable to the plaintiff; as a captain to prove a vessel not seaworthy in an action against the owner for negligently carrying goods freighted. Lay v. Hollock, Peake, 101.
      11. There is a class of persons who are said to be witnesses from necessity, such as agents, factors, brokers, and others who act between the parties to a suit; but perhaps the principle would be more accurately laid down by saying, that all persons in the mutual confidence of parties litigant are competent witnesses between them, on the subject in which employed; as a book-keeper, to whom goods were delivered, to prove their direction; (Spencer v. Goulding, et al, Peake, 129,) or a servant, to whom money has been paid for his master, to show that it was given into his hands; (Mathews v. Haydon, 2 Esp. 509,) so to prove that goods, for which he had an order in his favor, were delivered over to the defendant; (Burlingham v. Deyer, 2 Johns. Rep. 189,) or an agent, who applied to a broker to get insurance, to prove the order and representations; (Mackay v. Rhinelander, 1 Johns. Cas. 408,) or, though employed to make a purchase on terms which he exceeds, to testify between vendor and vendee. Bailey & Bogert v. Ogden, 3 Johns. Rep. 399.
      18. AVhen the interest in the subject matter of the suit is such that the verdict cannot be used in favor of the witness; as that of a widow, in an action for the recovery of lands claimed under her husband, out of which she is entitled to dower; (Jackson v. Van Dusen, 5 Johns. Rep. 144,) or a defendant in a suit at law, to prove perjury in an answer to a bill filed by him against the plaintiff, for a discovery respecting the merits of the question between them ; (Rex v. Boston, 4 East, 512,) so if the suit in which the perjury is alleged, has terminated in favor of the witness. Rex v. De Favia, Peake’s Cas. 104; Rex v. Broughton, 2 Stra. 1229.
      The same rule holds in equity, notwithstanding the decision in Rex v. Menetone, cited 4 East, 516, and The King v. Eden, 1 Esp. Rep. 98, in which the evidence went to permit a party to manufacture it for himself. Where, however, a statute exempts a person from penalty or punishment on convicting another, a witness testifying to that effect is competent,. though the verdict gained on his testimony may be used by him in his own discharge. Howard v. Shipley, 4 East, 180.
      It has been a subject of frequent discussion whether a person whose name has been forged to an instrument, is a competent witness to prove the forgery. In England he is hold to be incompetent; (The King v. Boston, 4 East, 582, per Lord Ellonborough,) so in Connecticut, (State v. Blodget, 1 Root, 534, State v. Bronson,1 Root. 301,) unless he comes within the principle of Bex v. Broughton, ubi sup.; as where the witness had recovered the money, on a receipt for which his name had been forged; (Welle’s Case, Bull. N. P. 289,) or has been released by the party to whom liable by the forgery, (D. Dodd's Case, 2 Leach's Hawk. c. 46, s. 24, n.) whether it would be so with us is doubtful, (The People v. Howell, 4 Johns. Rep. 296,) he is not in Pennsylvania: (Respullica v. Keating, 1 Dall. 110; Pennsylvania v. Farrel, Addis. 246,) nor in Massachusetts. Commonwealth v. Hutchison, 1 Mass. T. R. 7.

      A further rule on the subject of competency is, that an interested person is the best possible witness against himself. Jackson v. Vredenbergh, 1 Johns. Rep. 159. Therefore, an uneertificated bankrupt to decrease his estate. Butler v. Cooke, Cowp. 10. A witness to prove himself liable. See post, p, 84, n (a.)

   THOMPSON, J.

The two questions arising out of this case, and made on the part of the defendant, are, 1. Whether James Hussey, was a competent witness ; 2. Whether the defendant is bound by the contract Hussey made with the plaintiff, and to what extent.

I think the master of the vessel was a competent witness. His testimony would tend equally to charge himself on a.ny event: and although, perhaps, he might himself have objected against being examined, yet, as his interest between these parties is equal, the objection .against him could, with propriety, be made by neither. The witness was liable to the plaintiff on his bill of exchange which he had drawn on the defendant, which had not been accepted : and, if he had borrowed the money from the plaintiff in capactiy of master of the vessel of which the defendant was owner, and had misapplied that money, he would be responsible to the defendant for such misapplication. He was therefore competent, not on the ground of necessity, *but because, as between these parties, he stood perfectly indifferent on the score of interest, which must exclude every presumption of bias on his mind With respect to the second question, there is no doubt but the master of a vessel may make his owners personally responsible for necessary expenditures, relating to the usual employment of the vessel. The master is held up to the world as the agent of the owners. His character and situation furnish presumptive evidence of authority from the owners to act for them in such cases. But in order to make the owners responsible, it is necessary the supplies furnished the master should be reasoably fit and proper for the occasion; Abbott, 108; or that the money advanced to him for the purchase of them, should at the time, appear to be wanting for that purpose; the contrary would furnish a strong presumption of fraud and collusion on tbe part of tbe creditor. The court, however, I think, ought not to be scrupulously nice in requiring the creditor to show this necessity, to the full extent of the money advanced. The master is elected and appointed by the owners, and by their appointment of him to a place of trust and confidence, (1 Bro. Parl. Cas. 284,) they hold him forth to the public as a person worthy of such trust and confidence. The exist ence and extent of such necessity were proper questions for the determination of a jury. The master swears that the money borrowed was for the purpose of paying the necessary expenses of the ship, and the exporting duties of the cargo, the whole of which has been delivered to the defendant, together-with a full account of all the transactions. So that if all the money borrowed was not expended for the purposes for which it was loaned, it has been accounted for by the master. There can be no doubt, I think, that the captain had a right to borrow money on the credit of his owner, to pay the necessary expenses of the ship, and the money applied to the payment of the exporting duties was clearly for the benefit of the defendant; he was interested in the outward cargo, and it is fairly to be presumed he was also in the return cargo. At any rate the whole of the cargo, upon which the exporting duties were paid, has been delivered to the defendant, and upon which he will have a lien for the repayment of the money against any claim on the part of the assignees of Yard. *There appears some contradiction between the master and mate as to the extent of the necessity of the expenditures; their credibility was, however, a proper subject for the jury, with whose decision I see no reasonable ground for dissatisfaction. I am therefore of opinion that the plaintiff ought to have judgment.

Kent, J.

It will not be requisite for me to examine the first question, because, admitting Captain Hussey to have been a competent witness, I am of opinion the plaintiff is not entitled to recover. There was no special authority given to the captain to bind the owner of the vessel. All the power that he had was derived from his general and ordinary character as master; and in that character, he can only bind the owner of the ship to contracts relative to the usual employment of the ship, and the means requisite for that employment. Abbott, 83, 92, 94, 97; Abbott, 102 ; 1 Bro. Pari. Gas. 284. This power relates only to the carriage of goods, and the supplies requisite for the ship. The master quoad the cargo is limited to the duties and authorities of safe custody and conveyance* and, except in cases of unforseen necessity, he is a stranger to the cargo beyond those purposes. 3 Rob. Adm. Rep. 257, 258. The contract, in the present case, was not respecting the employment of the ship. It was wholly distinct from it. The payment of the export duties at Port Republican was made by the master, in the assumed character of agent respecting the cargo, and whether well or ill assumed, is perfectly immaterial as it concerns the owner of the ship. He can only be affected by contracts relative to the master’s trust, who is set over the ship, and not over the cargo; and the owner of the ship cannot be bound by any contract of the master concerning the purchase of goods, or the charges attending them. If this had been a contract concerning the destination of the vessel from Port Republican, the time of sailing, or the amount or species of goods she was to carry; or if it related to the repairs of the ship, or the stores and provisions requisite for the voyage, the question would have been very different. But it would be of most dangerous consequence to shipowners, to be held responsible for all the master’s contracts and loans, relative to the goods on board; and it would be. unjust on principle, because such contracts are not within the purview of the master’s trust. It is very clear, in *this case, that the loan of the plaintiff was not requisite for the ship’s expenses: the master had funds in hand more than sufficient for all such purposes. The loan was for the payment of tbe export duties on tbe sugar and logwood, and tbe sugar and logwood were purchased with tbe proceeds of tbe outward cargo belonging, to Yard, and were delivered on board for and on bebalf of Yard, and, consequently, tbe property vested in bim, and went to bis assignees. Tbe delivery of the sugar and logwood to tbe defendant, on tbe ship’s arrival at New York, cannot alter tbe nature and operation of the contract of loan; for tbe defendant must be responsible to tbe assignees of Yard for tbe amount of that cargo. It was formerly held^ (Johnson v. Shippen, per Holt, Cb. J., 2 Ld. Raym. 982; Salk. 35 ;) that tbe master of a ship bad no credit aboard, but upon the security of hypothecation; that he could not hind the owners personally, and that the hypothecation must have been for necessaries for tbe ship. But in tbe case of Carey v. White, Abbott, 102; 1 Bro. Parl. Cas. 284, it waS established, after great litigation, in the bouse of lords, that tbe owners were liable for money borrowed by the master for necessaries for the ship, but it must appear that the money Yas wanted for tbe necessary use of tbe ship, and this, I apprehend, is the extent to which the owners liability has hitherto been carried. I do not think that tbe receipt of the cargo by the defendant makes any alteration in the case. The cargo did not belong to the plaintiff, and the acceptance of it cannot, I think, be construed into any affirmance of the loan, because there is no necessary connexion between the cargo and the loan, and the defendant had a right to receive and detain the cargo, as a security for the freight, and it was prudent for him to do so since Yard, to whom the cargo belonged, had already become a bankrupt. But there is another fact which completely does away this inference of any affirmation of the loan, and it is a fact direct and unequivocal; and this was the refusal to accept the bill of exchange. For these reasons I am for the defendant.

LIVINGSTON, J.

Two questions are made by this case; 1. "Whether Hussey could be examined without a' release from the plaintiff; and, 2d. Whether his contract was binding on the defendant. Unless masters be admitted as witnesses in cases of this kind it will be extremely difficult to ascertain whether such a necessity existed as would , justify their ^taking up moneys on their owners’ account. I will not, however, say, that from necessity this testimony ought to have been received; because, as the witness had no interest, I see no reason why he should have been excluded. In any event, he stood indifferent between these parties, being liable either to pay the money received to the plaintiff,‘or to refund it in another action to the defendant. Thus in 7 D. & E. 481, in noil's, it appears, that a master who had, as in this case, drawn a bill on his owners, was a witness between the bill-holder and his owners, he being liable, in Lord Kenyon’s opinion to the plaintiffs on his bill of exchange, and to the owners if the money was borrowed improperly, or for himself. As to the damages for which Hussey may be liable on this bill, it does not appear that any are due; and if that be the case, I am not certain that the defendant, if he wrongfully suffered the bill to be protested, is not liable for them. If not, what is to prevent an action on the bill against Hus-sey, in which he would be entitled to a credit only for the sum recovered in this suit. I think, therefore, he was a competent witness. As to the second point, it is not easj to conceive a case of stronger necessity for making the loan than is here presented. It was the only way of securing the freight, and most manifestly for the owner’s benefit. Yard being a bankrupt made no difference; for his as-signee could not get at this property without discharging the freight, and the moneys paid for exportation duties. This lien existed against all the world. It is true, the cases generally speak of moneys borrowed for repairs and necessaries, but the same reasoning applies here. This was money borrowed for the benefit of the owners, and in relation to the voyage then pursuing, and the whole transaction being in good, faith, it would be hard to say the master shall refund it himself. But without deciding this point, it appears that the cargo brought back was received by the defendant, who, it is probable was immediately in formed of what his captain had done. He must, therefore, for aught that appears to the contrary, have in his hands the very money for which this action is brought, and, at any rate, the acceptance of the cargo, under these circumstances, must be regarded as an affirmation of the captain’s conduct. The plaintiff is, in my opinion, entitled to judgment. ,

New trial refused.

       Wherever a witness is, in all events, liable to one or other of the parties to a suit, and his testimony goes only to determine to which he shall be so liable, lie is competent. Therefore, in an action by the holder of a bill against the drawer, the acceptor is a good witness to prove he had no funds of the drawer’s in his hands at the time the bill was drawn. Staples v. Okines, 1 Esp. Rep. 322. So a payee of a bill of exchange, drawn without consideration, is competent, in an action by his endorsee against the maker, to prove the time of his endorsement, and the value given for it; because he is liable to the drawer for money paid if the verdict be against him, and if it be for him, to the endorsee on the endorsement, Shuttleworth v. Stevens, 1 Camp. 407. But where tne payee of such a note is discharged under an insolvent or bankrupt law, posterior to its date, he is not a competent witness for the defendant maker, because he is not liable to the plaintiff endor-' see, and would be to the defendant if a verdict went against him. Maundrell v. Kennett, ibid. 408, n. So an endorsor of a bill who has received money from the drawer to take it up, may prove the payment of the bill in an action by the endorsee against the maker; for he is liable, on liis endorsement, to one party, and to the other for money had and received; the extra liability to the costs o£ the action in which he testifies is of no importance. Birt et al v. Kershaw, 2 East, 458; Ilderton v. Atkinson, 7 D. & E. 480, overruling, in this respect, Buckland v. Tankard, 5 D. & E. 578; see Renaudey. Croken, 1 Caines’ Rep. 168, and M'Leod v. Johnson, 4 Johns. Rep. 126.

       See New York Digest, title Witness The competency of witnesses, &c., and the rules heretofore existing as to witnesses, have been materially altered. Under the Code of Procedure, a party to the action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, and may be compelled to testify, &o. See Code of Procedure, p. 153, § 390; [seo. 344,] see Bank of Charleston v. Emerick Davenue, 2 Sandf. 718; Park v. Mayor, &c., of the City of New York, 3 Com. 489; Pillow v. Bushnell and others, 4 Howard, 9; Brockway v. Stamton, 2 Sandf. 640; Anderson v. Johnson, 1 Sandf 713; 2 Code Rep. 66; 2 Code Rep. 15; 2 Sandf 661; and for certain purposos a party may offer himself as a witness. See Myers v. McCarthy, 2 Sandf. 399, 2 Code Rep. 143; see examination of co-plaintiff or co-dofendent, Code of 1849, and amendments thereto passed 1851; Code of Procedure, § 391, p. 155. Por authorities on the above, see 4 How. 212 ; 5 How. 223 ; 5 How. 296; 5 How. 401, and 5 How. 281. Code of Procedure, p. 156, says, No witness to be excluded by reason of interest, § 398; [sec, 351,] and also shows to whom this rule does not apply in § 399, [sec. 352.] Por decisions under Code Of 1848 and 1849, see 1 Barb. 151, S. C. 3 How. 401, S. C. 1 Code Rep. 108, 2 Code Rep. 16, 5 How. 8, also see 6 Barb. 666. By sections (of Code) 64, sub. 15, this applies also to justices’s courts. See also different decisions and opinions as to competency and incompetency, Pillow v. Bushnell, 2 C. R. 19, 4 Pr. Rep. 9, 1 C. R., 133, 7 L. O. 225, 1 Code Rep. 123; Huffman v. Stephens, 2 C. R. 16, 1 C. R. 113 ; Farmers Bank v. Paddock, 1 C R. 81, 3 How. 401, 1 C.R, 108, 1 I. O. 139 2 C. R. 33.


author: Livingston, J.

text:
    J. and G. Depeyster against The Columbian Insurance Company.
    If a plaintiff examine his witness and deliver him over to the defendant to cross-examine, and before any opportunity offer to enable the plaintiff to ask him any questions in explanation, the witness fall down in a fit, and the plaintiff go on to examine other witnesses, and try the cause, the court will not afterwards grant a new trial to give the plaintiff an opportunity of letting in the farther testimony of the same witness. If the defects in a vessel existing previous to the effecting a policy of insurance, be not such as to render the vessel unsoaworthy, though she may demand repairs on her voyage, if she perish in its prosecution, the amount of the repairs required for her anterior defects are not to be deducted from that of the verdict, if rendered for a total loss. If a judge misdirect in one point, which does not go to the merits of the case, according to which the jury decide, the court will not, on that account, order a new trial.
    This was an action ?o recover a total loss by perils of the sea, on a policy of insurance on goods on board the schooner John, for a voyage from New York to Curracoa.
    From the testimony of the mate and master, who was also owner of the vessel in question, it appeared that the circumstances of the case were these:
    The bottom of the John was, at the time of her sailing, a little worm-eaten; but she was, notwithstanding, a staunch, tight, and strong vessel, completely found, manned and equipped for the voyage. On arriving a little to windward of her place of destination, the captain perceived the day too far spent to admit of running into his port before dark, and therefore lay too, lest he should pass it in the night. Notwithstanding this precaution, on looking out, at daybreak, he found himself considerably to leeward of Curracoa. In order, however, to gain his port, he continued ineffectually endeavoring to beat to windward, till his wood and water were nearly exhausted; when, the ^vessel being so leaky, from bad weather which she had encountered, as to require one pump to be always kept a going, and sometimes both; being also shattered and damaged in her rigging and sails; it was, on consultation with the officers and crew, determined to bear away for Kingston, in Jamaica, where they in a few days arrived, with the cargo uninjured. The state of the vessel requiring repairs, she was surveyed, not in a regular manner under a warrant from the court of admiralty, but at the request of the master, by some seafaring captains, who pronounced, as the witnesses deposed, that she could not be repaired for her worth at the time of her sailing from New York. On this, and after a fruitless attempt to procure a vessel to carry on the cargo to Curracoa, the captain broke up the voyage and sold the cargo, part of which consisted of perishable articles, for the benefit of whom it might concern, at a loss however, of nearly 50 per cent. So impossible was it to procure a conveyance from Kingston to the port of original destination, that a passenger, who went out in the John, was obliged to return to New York, and again embark from thence to Curracoa. Having in some degree refitted the vessel, she sailed in ballast for Savannah; but on her passage (as out of her crew, composed of only five persons and a boy, fwo had died) she put into tbe Havanna, where she was hove down, repaired and refitted, and a cargo of one hundred and fifty boxes of sugar taken in, with which she arrived safely in the United States. When at the Havanna, she was examined, and her-bottom found very much injured by worms, but as the expense of repairing was much less at the Havanna than at Kingston, they were bestowed at the former place, without doing of which the schooner could not have proceeded. On the trial, the master, while on his •cross-examination by the defendant, was seized with a fit, and could no further testify ; but neither party desired the trial to be put off on that account.
    The judge charged, that if the jury believed the vessel to be seaworthy when she sailed, and that the expense of repairing her when at Kingston would have cost half her value, they ought to find for the plaintiffs for a total loss, but in calculating the repairs, if they were of opinion any were necessary on account of injuries received by means of worms before the vessel sailed, *the repairs for such injuries ought not to be calculated to the prejudice of the defendants, but that they should confine their estimate to the damages subsequently sustained during the voyage.
    On this a verdict was given for the defendants, to set aside which the court ivas now applied to.
    Junes, for the plaintiffs.
    The circumstance of the captain’s being seized with a fit prevented our re-examination,» as to points which the defendant’s cross-examination rendered necessary. The sale of the cargo was unavoidable, as it was impossible to convey it to the port of destination; and as the amount of the repairs at Kingston was more than half the value of the vessel, it constituted a loss of the voyage, on which the assured had a right to abandon, as it arose from perils of the sea. Wherever a vessel is, from perils of the sea, unable to reach the port to which bound, the owner of goods insured may abandon, unless it appear that the ship was not seaworthy at the time of her sailing. This she is, notwithstanding any little defects, if, in her then state, adequate to the voyage. Should she in the course of performing it demand repairs, the quantum induced by such anterior defects, are not to be deducted from the amount, in order to prevent the conclusion of a loss of voyage ; because it is, in the first place, impossible to discriminate between the value of the repairs for the injuries prior to her sailing, and those which arise subsequently. In the next place, the underwriter is always compensated to the supposed extent of such previous injuries, in the deduction which is constantly made of one third new for old. This allowance is made him as a kind of premium for his responsibility for subsequent accidents, inducing a deterioration to more than half the worth of the vessel. In the estimation the judge charged the jury to make, there was, therefore, an evident misdirection, and this, is sufficient to induce an order for a new trial.
    Bogert, contra.
    The application cannot be granted to let in the evidence of the captain. His testimony was inadmissible ; for, as he was owner, he was interested in proving the sea worthiness of his vessel at the commencement of the voyage, and her becoming so from perils of the sea, to prevent an action against himself by the owner of the goods. '^To render him competent he ought to be released. Peake’s Law of Ev. 113, citing Iiotheroe v. Elton, and Fox v. Luskingion, Peake’s N. P. Cas. 81. But if competent the plaintiffs had finished their examination, and a new trial is never awarded to let in evidence, merely because the party sees where the cause presses.. 2 Bl. Rep. 81S. On the point of unseaworthiness, nothing is more settled, than that, if induced by defects before the voyage is commenced, the underwriter is discharged. He is liable only for injuries during the voyage; and if those injuries be less then half the value of the vessel, there is no ground for breaking up the voyage.
    Hamilton, in reply.
    Where testimony has been omitted by a party, in consequence of advice from his counsel, by which he was misled, the court will grant a new trial; a fortiori when the act of God prevented its being adduced. In 1 East is a case to this. Where the defects are not such as to create unseaworthiness at the time when the policy attaches, they are not at the risk of the underwriter. Millar, 110, et seq. In Da Oosta v. Newnham, the discrimination in the charge was not even touched on, though old and new injuries were the subject of litigation.

        Spong v. Hogg. In this case the counsel had, from prudential motives, omitted to produce the testimony wanted tq be- introduced on the second trial

   Livingston, J.

delivered the opinion of the court. A motion for a new trial is made on the following grounds: 1. Because the plaintiffs were deprived of the full benefit of the testimony of one 'of the witnesses, by reason of his sudden illness. This witness was not seized with a fit until the plaintiffs had examined and given him over to the defendants ; but had it been otherwise, they should have suffered a nonsuit. Instead of this they proceed with the trial, examine other witnesses, and take the chance of a verdict on the testimony then in their power. After this they come too late for a new trial. 2. It is alleged that the verdict is against evidence. The extent of the injury sustained, and expense of repairing, were fairly submitted to the jury as questions of fact, and there is no room to say they have decided them contrary to the evidence. What the repairs cost does not exactly appearthose at Kingston amounted to near four hundred dollars. After mending her ¿ails, rigging and bowsprit, and calking-her ripper works ai Kingston, the John sailed for Sayan nab, but having a dying and *sickly crew, and the schooner continuing leaky, she was obliged to put into the Havanna. There she received a new bowsprit, topsail, squaresail, and flying-jib ; she was also hove, down, calked and graved, but not sheathed; her bottom was somewhat worm-eaten, and the captain believes that w;as in some, degree the case'when she left New-York : after these repairs she took in a cargo, of 155 boxes of sugars and returned to Philadelphia. Prom this statement it is impossible to say that satisfactory evidence was offered to the jury, that her repairs would cost a sum sufficient to justify breaking up the voyage. The mate swears as to this point only from hearsay, and the captain, who was very much interested in making a good story, only gives his opinion, without producing any survey. The repairs actually put on her, the good condition of her cargo, and her returning to the United States with a heavy lading, are strong circumstances against the plaintiff’s claim. 3. It is also said the jury were misdirected on a point of law. In calculating the cost of repairs, they were told that if they believed any were necessary on account of injuries received from worms prior to the vessel’s sailing, the expense of such repairs should not be included' in the estimate. This direction is supposed to be incorrect, inasmuch, as it prescribes a rule, difficult,if not impracticable to follow. How, it is asked, are. the jury to distinguish be: tween repairs rendered necessary by perils of the sea, and those which are become so in consequence of some damage or defect existing at the commencement of a voyage ? And from this difficulty of making the proper separation, as well as from the natute of the contract, it is insisted that the true rule is the. one laid down by Millar, 136, in his Treatise on Insurance, which is, that underwriters are responsible for pre-existing defects, unless they be so great as to render the vessel not seaworthy.” It may at first seem bard to hold an insurer in any way liable for the defective nature of the thing insured, but so long as the subject of insurance be seaworthy, is it not part of his contract that in case of accident, he will defray all the expense of placing her in statu quo ? If she be totally lost, he pays the whole sum subscribed without any inquiry into her condition, any father *than to ascertain whether she were seaworthy; so if she be partially injured, the repairs being rendered necessary by a peril insured against, they ought to be made, without any other examination as to her antecedent state, except to determine the same fact of her being seaworthy; for, unless she had been further damaged by one of the perils insured against, no repairs at all would have been necessary. This point is not settled by any adjudged case. In Manning v. Newnham, reported by Millar, 303, the defendant proved some of the damages old and some recent. This is all that is said, and the defendants’ counsel lay no stress on part of the damages being ancient, nor does Lord Mansfield take any notice of that fact. This case, therefore, proves nothing either way. I adopt, however, as a general rule that if the old injuries are not such as to render the vessel innavigable, no deduction, in case of accident, is to be made on that account from the cost of repair, and therefore think the judge was mistaken in directing the jury to make the distinction he did. But admitting a mistake in the judge’s charge, a new trial ought not always .to be the necessary consequence; it is not for every misdirection in point of law that the parties should be put to the expense of further litigation. If the result from the testimony would probably have been the same, whether a particular direction had been given or not, it can be no reason for granting a new trial. Here if the jury had taken into the the estimate the expense of all repairs, without any deduction for old or former injuries, their verdict must have been the same. If, then, there be be good reason to tbink the plaintiffs have not been injured by the judge’s mistake, they ought not to be indulged with a new trial. I do not, by any thing that has been said, mean to be understood as subscribing to the nisi prius opinion of Lord Kenyon, which was cited from 1 Esp. Rep. 444, “ that if a ship’s bottom during a voyage be eaten by worms, so that she be incapable of proceeding, and be condemned, this is not a loss within the policy.” It is not necessary to decide this question now.

New trial refused.

       See Halsey v. Watson, 1 Caines’ Rep. 25, n. (a,) and Steinbach v. Columbian Ins. Co., post, 133, n. (a,) and Deas v. Smith 1 Caines' Rep. 154, n. (a.)


author: Sent, Ch. J.

text:
    *Green against Long.
    In an action for saying of another “ lie is perjured,” it is enough to prove the -words spoken, and that they refer to the plaintiff. If it appear they were spoken in giving testimony in an inferior or particular court, the competence of that court to administer an oath need not be proved, but its incompetence must appear from the defendant.
    This was an action of slander for saying of the plaintiff “you have perjured yourself.” The plea not guilty, with a notice subjoined that it would be proved on the trial, that the plaintiff was examined as a ■witness before a court-martial, held, agreeably to law, upon the defendant, as a captain, for disobedience of orders. The notice then set forth to what the plaintiff testified, that it was material to the charge in issue, and was not the truth. The cause came on before Mr. Justice Kent, at the Washington circuit, in 1803. The plaintiff at the trial proved the words spoken, and to be understood as referring to him ; but the defendant urging, that in addition to this testimony, the proceedings of the court-martial ought to have been produced to evince its existence, and competence to administei an oatb, tbe judge allowed tbe objection, and nonsuited tbe plaintiff.
    Tbe application now made was to set aside this nonsuit, and order a new trial.

      Russel, for tbe plaintiff.
    We shall submit to tbe court wbt fcher, in an action for words actionable in themselves, tbe plaintiff is bound to prove more than tbe speaking those wor Is ? Secondly, whether, in case be is, as tbe notice in the present instance acknowledges tbe existence of tbe com !, and proceedings therein, the defendant is not pre-clud jd from taking tbe objection be has raised ?

      T\-n Vechlen, contra.
    On tbe first point it is necessary only to inquire whether actionable words may not be explained by others uttered at tbe same time, or by circumstances tending to show that, though in themselves actionable, their actionable quality was done away. Suppose it had been said tbe plaintiff 'was perjured in a court which do?s not exist ? It surely might be shown that there was no such court, and .therefore no perjury could have been committed. As to the second point, the notice is merely provisional, to be availed of if the person chooses. The plaintiff must always prove his case, in the same manner as if a notice was not annexed.

      Woodworth, in reply,
    was stopped by
   Sent, Ch. J.

I am clear I was wrong at nisi jprius. It "x'ought to have been intended and presumed, that everything took place before a court of competent jurisdiction. The onus lay on the defendant to show that it was otherwise. As to the argument that there might not have been any such court as that in which the perjury was alleged to have been committed, it would, in my opinion, have been an aggravation of the offence. The assertion might have had all the effects of a charge of perjury before a competent jurisdiction: I am therefore for granting a new trial, with costs to abide the event of the suit.

New trial granted.

       See Hopkins v. Beedle, I Caines’ Rep. 348, n.’(a.)


author: Per Ouriam.

text:
    Jackson against Mann.
    "Where a party has it in his power to enforce payment of costs awarded him by attachment, the court will not take the non-payment into consideration, in forming a subsequent decision on a collateral matter. An attachment in the first instance is not granted against a witness for disobeying a subpoena. Tlie practice is, to move for a rule to show cause. Absence of a plaintiff's witness at the trial, after a due subpoena, is good cause against judgment as in case of nonsuit, and excuses stipulating.
    Henry moved for judgment as in case of nonsuit for not proceeding to trial, and also for costs of the last circuit, and those formerly, ordered, on an affidavit, stating a similar motion in a former term, in which the expense of witnesses only was allowed, as the cause had been countermanded by consent; that these costs had been demanded and not paid, after which the cause was again noticed, but neither plaintiff nor his witnesses attending at the circuit, the defendant requested that he and his witnesses might be discharged, which, however, the plaintiff’s -attorney absolutely refused.

      Van Yeveren, contra,
    read an affidavit, setting forth that the plaintiff had duly subpoenaed one Obadiah Phelps, his principal witness, but that he did not attend, and was, as the deponent verily believed, kept away by the contrivances of the defendant. He insisted also, that as notice of trial for the last circuit was accepted, the defendant had waived his right to the former costs. If the court should bs against him on these points, he hoped they would grant an attachment against Phelps, whose contempt in disobeying the subpoena was the cause of not proceeding to trial.
   Per Ouriam.

The absence of the plaintiff’s witness is sufficient to induce us to refuse the application for a non suit, and even to excuse him from stipulating; but as he is in contempt for not paying the costs formerly ordered, let him pay those of the last circuit within twenty days a/ter due demand; in default thereof, the defendant to be at liberty to enter up judgment as in case of nonsuit *As to those costs, which, on the former occasion, were allowed, we do not take them into consideration the defendant having it in his power to enforce them by attachment; and, with respect to the attachment prayed for by the plaintiff, it is not usual to grant one in the first instance, unless some wilful disobedience to the authority of the court is made to' appear; the plaintiff, therefore, can have only a rule to show cause.

Motion denied.