text:
    Brown, assignee of Dawson, a bankrupt, against Cuming.
    In an action by assignees of a bankrupt for money due their bankrupt as supercargo of a ship, the defendant cannot set off a claim against the bankrupt for not keeping his vessel fully insured, the same being then unliquidated.
    Assumpsit by the assignees of a bankrupt for work and labor, care and diligence, about the defendant’s business, with a count for money had and received.
    The circumstances of the case were simply these: The bankrupt had been supercargo of a vessel belonging to the defendant, on a voyage from St. Croix to Philadelphia, and from thence to Amsterdam, with orders to keep the ship fully insured. He, in the course of her voyage, advanced ,noney for repairs, and also for prosecuting a claim for her recovery, which he interposed on her being captured and carried into a British port. The vessel, however, though insured for 10,000 dollars, was not covered for the amount of the ^‘repairs, and the sum which she thus stood short insured, the defendant claimed a right to set off. Whether he was entitled to this or not, was the only question.

      Hamilton, for the defendant.
    Wherever there is a par* tieular individual agency, all omissions, relating to the subject matter, which induce loss, are objects of set-off. Where a party omits to insure, he becomes an insurer. This right we contend for, is in a more empiratical degree to be insisted on in this case, which arises under the bankrupt laws, because they admit of a more liberal set-off than any •other, by extepcling.it to all cases of mutual credit. 1 Cooke’s B. L. 569 ; Ex parte Deeze, 1 Atk. 228. So in the case of Smith v. De Sylva, Cowp. 469.

      Riggs, contra.
    Two points may be made ; 1st. Whether the demand of the defendant can be set off under the general statute? 1 Rev. Laws of N. Y. 347. If not, 2d. Whether under the bankrupt law of the United States ? As to the first point, there must be mutual debts; debts mutually due at the commencement of the action. Montagu on Set-off. 17. The demand of the defendant must be a debt, certain and liquidated; for uncertain, or unli-quidated damages cannot be set off. It must be such a claim, that for it indebitatus assumpsit will lie. Freeman v. Hyett, 1 Black. Rep. 394 ;
      Howlett v. Strickland, Cowp. 56. Therefore, uncertain damages, requiring the intervention of a jury, do not admit of set-off Weigall v. Waters, 6 D. & E. 488. Here, had the defendant sued, it could not have been by indebitatus assumpsit, but by a special option on the case, sounding in tort, and bottomed on negligence, in which the plea would have been not guilty. Hancock v. Entwistle, 3 D. & E. 434. Suppose the case of a claim for demurrage, and the sum not fixed in the charter party,could it be set off before the amount had been ascertained by a verdict ? Clearly not. Then how can the sum not covered be settled, but by a jury, before whom the value of the vessel, and the amount insured could be made to appear ? Besides, the bankrupt was vested with a discretionary power as to the quantum to be insured; it is only ori a gross neglect, or wilful abuse of such power,

       that the agent becomes liable to his principal, and stands in the place of insurer. Where there has been a tort in law, the equity of courts has allowed a set-off in cases where the ^damages were reducable. to arithmetical certainty, v/ithout the aid of a jury; or, rather, where the jury must have been governed by such a calculation. In trover against a carrier for delivering goods to a wrong person, the sum due for carriage becomes, on this principle,, a matter of set-off. But that reasoning cannot apply in this case. As to whether it could be set off under the. bankrupt law, the only difference between that and our state act is, that in the former the words mutual credit are used. They mean either where a credit is given ; as for goods sold, and payment to be at a future day, debitum in presentí, solvendum in futuro ; or, where a person is intrusted with the property of another, and it turns out in the event that he is a debtor upon the sale of that property. Russell,. arguendo, in Smith v.- Uodson, 4 D. & E. 211; Prescott's case, 1 Atk. 230 ; Ex parte De Seze, ibid. 222 ; French v. Fenn, Montagu on Set-Off, Append. 19. In these the credit is •iven in the very transaction ; the sums certain, or reduca-ble to certainty, by calculation. Here it can be done only by jury intervention. Lord Kenyon, in Hancock v. En• twistle, 3 D. & E. 435, says it is a principle that no debts can be set off under a commission but such as are provable ; for they are controvertible expressions. Cullen’s B. L. 110. If provable, it must have been such a one as could be fo.und by the commissioners, on striking- a balance. Ibid. 192, 197. The defendant’s demand could not have been a debt due before bankruptcy, and ascertainable afterwards ; for, till his negligence or misconduct be found, he cannot be a debtor; because, till the contrary appear, every man is believed to have acted right, and if Dawson acted bona fide, then there is nothing due from him.

      Hamilton. In cases where a quantum valebat or a quantum meruit will lie, there may be a set off, and the principle of those will equally apply. How much were the goods-worth, or how much did he deserve, would be the inquiries there; and in this it is how much was insured, and how much not. This is as plainly matter of arithmetic as any other. If not, the plaintiff may recover the whole amount of the contract; and yet the subject matter of the contract have been totally lost and destroyed by the ill conduct of the supercargo. This would be to make us pay wages for inj ury instead of service. There is no decision against the right we claim; it is *not inequitable ; in all cases of equitable interposition, the courts have gone step by step from the strict law, to favor and extend justice. The rule adopted in trover is one instance ; this will, it is hoped, be another, especially as it is confined to cases in which the set-off claimed relates to the matter on which the plaintiff’s action is grounded. It would be hard when we have lost our ship, to make us pay the ull amount of a demand about that very ship, and then uurn us in-under a commission which pays only sixpence in the pound.

      Riggs. We say you cannot come under the commission, but have your remedy against the person.

       By the common law, claims arising out ofj or connected with, the plaintiff’s demand, are the only object of set-off These it seems incumbent on the defendant to urge, if not by plea, at least by way of evidence in mitigation of damages. Therefore, where an action was brought for the recovery of commissions due to the plaintiff on shipping a cargo of wheat for the defendant, who had in an anterior action against the plaintiff recovered for a breach of the contract to ship, lord Eilenborough ruled, that the action foz the commissions could not be maintained, as the amount due for them might have been given in evidence on the trial for the breach of contract, by way of reducing the damages, and that the verdict in that case had closed the account between the parties. Kist and others v. Atkinson, 2 Camp. 63 The reason of this decision may perhaps be, that the law abhors a multiplicity of actions. It is singular that in a jurisprudence adopting such a maxim, the right of set-off should have been so confined. By the Roman code it was thought indispensable to the ends of justice. Gompensatio, say the Digests, (lib. 16, tit. 2, de Compensationibtts,) necessaria est, quia interestnostra potius non solvere, quam solutum repetere. This necessity is acknowledged in Our statute law, by which the right of set-off is extended to unconnected demands; (Dale v. Sollet, 4 Burr. 2133; Green v. Farmar, ibid. 2221,) for wherever there are mutual “ debts,” in consequence of mutual “ dealings," the right of set-off exists. 1 Rev. Laws, 341. The rule under these words is, that not only the object of set-off, but that of the action in which it is offered, must be a debt certain and liquidated; (Nedriffe v. Hogan, 2 Burr. 1024; Howlett v. Strickland, Cowp. 56; Gordon v. Bowne, 2 Johns. Rep. 150,) for a set-off cannot be made against a demand which cannot itself be set off; therefore in an action for not paying over money according to agreement there cannot be a set-off. Colson v. Welch, 1 Esp. Rep. 379. It follows, from the first part of the antecedent rule, that a set-off cannot be made in an action on an open policy of insurance, (Gordon v. Bowne, ubi sup.,) nor of the unascertained losses on such a policy, even in an action for recovery of the commission agreed to be paid for guaranteeing the amount covered by the policy; (Carruthers v. Graham, 14 East, 578,) nor of the penalty of a bond; nor of unliquidated damages on a covenant; (Hewlett v. Strickland, ubi sup.,) or from any other cause; (Freeman v. Hyett, 1 Bl. 394,) nor where there is not a debt; as in actions for torts, of detinue, trover, or replr rvn; (Absolom v. Knight, Barnes, 450; Sapsford v. Fletcher, 4 D. & E. 511,) and that such a debt as will maintain a suit; therefore a nudum pactum cannot be set off; (Taylor v. Morey, 9 Johns. Rep. 358,) nor a debt barred by the statute of limitations; (Cranch v. Kirkman, Peake, 121,) nor a debt for which a prisoner was in execution, and has been discharged on a compromise, though the security taken for the amount* prove afterwards to be void, Jaques v. Withy, 1 D. & E. 557.
      But where there have been mutual debts, and the plaintiff has kept alive those of the defendant to him, by suing out and continuing process, counter notes given by him to the defendant, though due for more than six years, will, by the equity of the statute, be revived, and become objects of set-off; (Ord v. Ruspini, 2 Esp. Rep. 569,) so where there are mutual accounts, an item of the plaintiff’s demand, which is within the period of limitation, will revive the antecedent charges of the defendant, which are without it; (Cranch v. Kirkman, ubi sup.) and, as imprisonment is not payment, a debt for which a defendant has a plaintiff in execution, may be set off in an action by such plaintiff,- against the defendant at whose suit the plaintiff is imprisoned; (Peacock v. Jeffery, 1 Taun. 425,) and a defendant, who is in execution, may, on motion, set off against the sum for which he is in prison, the amount he has recovered in a cross action against the plaintiff at whose suit he is in custody. Vaughan v. Davis, 2 H. Black. 440.
      It is not necessary, however, that the debt should be a strictly legal right { .an equitable interest may be set off; as that of an assignee of a bond or chose in action, against a legal claim; (Tuitle v. Bebee, 8 Johns. Rep. 53, and the .cases cited there;) or a legal claim against an equitable interest. Ruggles v. Keeler, 3 Johns. Rep. 264.
      When a debt is certain, whether on the face of an instrument in writing, .or, by jury intervention, a. set-off is allowable, either against a sum due to an obligee on the breach of a condition, though the bond be not for the payment of money only; (Burgess v. Tucker, 5 Johns. Rep. 105,) or of the sum due on such a bond. Fletcher v.' Dytche, 2 D. & B. 32. So an average loss, the amount of which the underwriter has acknowledged, may be set off by a broker with a del credere, in an action against him for the amount of premiums. Weinholt v. Roberts, 2 Camp. 586,
      Another rule as to set-off is, that the debt must be due from the plaintiff in the same right or capacity as that in which he sues. Therefore, & debt due to an executrix in right of her testator, cannot be set off against a demand made, on her in her own right; (Bishop v. Church, 3 Atk. 691,) nor a debt due from a testator, in an action by his executor for a cause of action arising after the testator’s decease; (Shipman v. Thompson, Willes, 26, n. (a); nor in an action by an officer on a bail bond, a debt due from him in his individual capacity. Hutchinson v. Sturges, Willes, 261.
      Eor the, same reason, in a suit by a solvent partner and the assignees of his two copartners who had become bankrupt, a set-off cannot be made of a debt due from the old firm, though completely represented by the plaintiffs in the action; (Thomason and others v. Freere and others, 10 East, 418,) because a joint debt cannot be set off against a repárate demand, nor a separate demand against a joint debt. Ex parte Edward, 1 Atk. 100; Glaister v. Hewer and others, 8 D. & E. 69.
      But where the whole interest in a debt whic h might be demanded oí several, or which was originally due to several, becomes payable from one, or vested in one person, a set-off may be made of a debt due by or to him; therefore a debt due on a joint and several bond, may be set off against a demand of ono obligor only; (Fletcher v. Dytche, 2 D. & E. 32,) so a debt from a plaintiff as surviving partner, may be set off against a demand by him, in his own right; (French v. Andrade, 6 D. & E. 582,) and vice versa a debt due to a defendant as surviving partner, against a demand on him in his individual capacity. Slipper v. Stinstone, 6 D. & E. 493. Upon the principle last above stated it has been ruled by the supreme court of the United States, that where the debts due to a firm are assigned to one of the house who is thereout to pay the demands against the concern, and subsequently carries on the same .business, a joint debt of the old partnership may, under the bankrupt law of the general government, be set off against a separate demand of the assignee. Tucker v. Oxley, 5 Cranch, 34. And where a joint concern is carried on in the name of one person only, who appears to be a sole trader, a separate debt may be set off against a joint demand of himself and a dormant partner. Stacey v. Decy, 2 Esp. Rep. 469 ; 7 D. & E. 359, S. C.
      Debts actually joint, and known to be so, may, by agreement, be made objects of set'-off against separate demands. Kinnerly and others v. Hosack, 2 Taun. 170.
      The right of set-off may be insisted on, though an express promise has been made to relinquish it; for though the debt from the defendant arises on a loan by the plaintiff, on making of which the defendant promised not to set off his demand against the plaintiff, it may be availed of; (Lechmere v. Hawkins, 2 Esp. Rep. 626; Taylor v. Okey, 13 Ves. jun. 180,) nor can it be destroyed by a transfer to one of many joint creditors; therefore where a promissory note is given to a house consisting of several members, who endorse it over to another house constituted of a portion of the same members, a set-off can be made of a debt due from the whole firm, in an action by that whioh consists of only a part; (Puller v. Roe and others, Peake, 197,) nor by taking a guaranty from a third person for goods sold and delivered; the value of which may notwithstanding be set off by the vendor, in an action by the vendee. Dunmore v. Taylor, Peake, 41.
      Against a demand, by an assignee of stock in a company, for a transfer, a debt due from the assignor to the company on a loan to him, cannot be set off, (Mellionchi v. Roy. Ex. Ass. Co., 1 Eq. Cas. Abr. 8.) unless there be a bylaw subjecting each member’s stock to his debts to the company. Gibson v. Hudson’s Bay Co., 1 Stra. 645.
      In an action by a factor against a vendee of goods, the latter may set off a debt due from the principal, where the factor has no lien. Drinkwater v. Goodwin, Cowp. 251. Where the factor conceals the name of his principal, and deals as owner of the goods he soils and delivers, a vendee may in an action by the principal set off a debt due from the factor. George v. Claggett, 1 D. & E. 359. But a right of set-off cannot subsist between a buyer and his own broker, to the prejudice of the seller; (Waring v. Favenck, 1 Camp. 85,) nor between him and the broker of the seller, after information of the seller’s name; (Moore v. Clementson, 2 Camp. 22,) though a broker with a del credere commission, can set off losses paid by him, zn an action by the assignees of a bankrupt underwriter, for premiums received. Grove v. Dubois, 1 D. & E, 112, and see Bize v. Dickason, ibid. 285.
      The right of set-off continues to the time of action brought; (Evan v. Prosser, 3 D. & E. 186,) but by a late decision it seems, that a secret assignment of a debt by a creditor, without notice to his debtor, will destroy his right to make a set-off of any thing arising from subsequent dealings. Brisban & Brannan v. Caines, 10 Johns Rep. 45. This case, however, seems very questionable; it takes away, by an act valid only on equitable principles, a legal right, and that against the rules of equity; (Ryall v. Rowles, 1 Vez. 348, 375; Curzon v. African Comp. 1 Vern. 122; Peters v. Soame, 2 Vern. 428 ; Dounman v. Mathews, Prec. in Ch. 580, and a host of other cases,) and places, contrary to the rule of law, an assignee in a better situation than his assignor. A writ of error is, however, depending, in which the decision of the supreme court of How York will he reviewed. Eor set-off of judgments see Schemerhorn v. Schemerhorn, 3 Caines’ Rep. 190.

       That was not a case of set-off.

         Therefore a plea of sot-off .that the plaintiff was indebted to tho defendant at the time of plea pleaded, is bad. Evans v. Prosser, 3 D. & E. 186.

        Moore v. Morgue, Cowp. 479. The agent insured with an offiee which did not guaranty against one particular risk. IDs conduct being b.ona file, it was held he should not he charged.

         In thosa eases the debt exists; in those like the present, the rety existence is contingent.

   Livingston, J.

delivered the opinion of the court. We have considered this case with great inclination in favor of the proposed set-off, and with some solicitude to discover adjudged cases which would justify our going this length. It does not seem right that a supercargo who has violated his employer’s instructions, and thereby subjected him to a heavy loss, should recover any moneys expended during such agency, without permitting the latter to deduct or set off the sum which has been lost by his neglect and breach, of orders; and when it is recollected that the plaintiff is a bankrupt, the defendant’s case, if the set-off be refused, is still harder, as he will still have to pay the whole of the present recovery, and come in only for a dividend on his demand against Dawson’s estate, provided it were capable of being liquidated at the time of his bankruptcy. But strong as our leaning is, we cannot find that courts have as yet gone thus far. Where transactions constitute an account betwen parties, composed of mutual receipts and payments, it is contrary to reason as well as the understanding of the parties themselves, to consider any thing but the balance to be the real debt betwixt them. Yet the form's of law render it necessary for each party to sue the other in separate actions. This inconvenience, says a writer on this branch of law, for a long time remained a reproach to English jurisprudence ; several statutes were at length passed to remedy this mischief, the first of which applied to cases of bankruptcy. In this state also we have an act on the same subject: and the legislature of the United States in like manner have provided for cases of this kind.

*Our state law delares, (vol. 1, p. 437,) that, “where there has been mutual credit, or where mutual debts subsisted between the insolvent and any other person, the assignee shall state an account between them, and one debt may be set against the other; and what shall be due on the balance of such account, and'on setting such debts against one another, and no more, shall be claimed or paid on either side respectively.” The bankrupt act of the United States provides for cases of mutual credit, and mutual debts, and declares, in like manner, that after stating an account between the bankrupt and the other person, one debt may be set against the other.

Mutual credit, in common acceptation, is certainly confined to pecuniary demands; and as both acts speak of setting off one debt against the other, it can hardly be doubted that the legislature intended to embrace no other kind of demand. How can an account be stated between these parties? or how can a claim, made for breach of orders in technical or other language, be turned into a debt ? The case in Ex parte Deeze, 1 Atk. 228, cited by the defendant, Was in chancery, and Lord Ilardwicke determined nothing more than that a packer of goods should not be compelled to deliver them to the assignees of the owner who had become a bankrupt, without paying both the cost of packing and pressing, and also a debt due on another account: but even in this case, the chancellor considered the goods in the hands of Deeze, (as Lord Oowper had done on a former occasion,) and the note given, as forming an account current between the parties. He took notice also of Deeze being indebted to Nichols, the bankrupt, for wine about the same sum which the packing of the goods cost, and that those items also constituted an account between them. But here there is nothing which can form an account between the parties; on one side there is a demand for moneys laid out in repairs and supplies for the- defendant’s hip; but on the other, no moneys which he has received, >r with which he has been intrusted, or property which has been, committed to his care, for which he has to account.

The demand is also of a nature too uncertain and contingent to be set off.

In Freeman v. Hyett, 1 Black. 804, in an action for *money due for a parcel of cloths, the court would not permit the defendant to show by way of set off, that a former parcel of cloths bought of the same plaintiff were burnt in pressing, which had greatly lowered their value ; but put the party to his special action on the case. In Howlett v. Strickland, Cowp. 56. Lord Mansfield and the other judges would not permit unliquidated damages, occasioned by the breach of other covenants to be performed by the plaintiff, to be pleaded by way of set-off. “ These damages,” says his lordship, “ are no debts and Mr. Justice Msforawas clear that “ an unliquidated demand, or uncertain damages, could not be set off” So in Weigall v. Waters, 6 D. & E, 488, to an action of covenant for rent, the defendant was not permitted to set off damages which he had sustained by reason of breaches of certain covenants on the part of the landlord. “ The sum to be recovered,” says Lord Kenyon, “ is uncertain ; it must be assessed by a jury, and there is no pretence to say that those uncertain damages may be set off in the present action.”

In the present case the damages are still more uncertain, and the trial must be complicated to a great degree. Why the defendant did not insure ? or whether he could have insured fully? and what damages have been sustained? would be questions which ought not to be tried in this collateral way. The two cases last cited furnish also an answer to one argument of the defendant’s counsel, which is not without force, that as the set-off related to the same agency on .which the plaintiff’s claim is founded, it ought to be admitted; and yet in the cases just referred to; we find the claim of the defendants arose out of the same instruments on which the actions were brought, but was rejected. The judge, therefore, who tried the cause, was right in overruling the testimony, and the plaintiff must have judgment.

Postea to the plaintiff

         Therefore where an agreement is entered into for performance of covenants with a penalty, and the covenants are broken,, the penalty cannot- be Sat off. Nedriffe v. Hogan, 2 Burr. 1024.

       The presel t doctrine of recoupment appears to be applicable to this ease.


source: Caselaw Access Project

author: Thompson, J. Livingston, J. Kent, J.

license: Public Domain

text:
    Hunn and others against Bowne.
    If goods sold for a promissory note at sixty days, be left in the possession of the vendor, and he show them as the goods of the vendee, a sale by the vendee will be good, against one by the Vendor, notwithstanding the bankruptcy of the vendee, it appearing such sale by the vendor was after the knowledge of his vendee’s bankruptcy.
    This was an action of trover to recover the value of twenty bales of cotton. The property in question had, on the 29th of December, 1801, been sold by one Rodman to a Mr. John Foley, at a credit of 60 days, and for the ^amount of the purchase Foley gave his note, payable at that period. The goods, however, were not delivered, but continued in the possession of Rodman.
    A few days afterwards Foley informed Hutchison, a broker that he had some cotton for sale, which lay in Rodman’s store; in consequence of which, the broker called on Rodman, and without giving any intimation of his motives, desired to see Mr. Foley’s cotton. On this, Rodman directed one of his clerks to show Hutchison the cotton, which then lay in a fire proof store, and had a mark upon it. Hutchi-son, after an examination of the quality of the article, on account of tlje plaintiffs, made a purchase of it from Foley, who, on then receiving the plaintiffs’ notes for the full value which have since been duly paid, gave an order on Rodman for- the delivery of the commodity. This order, however, was not immediately presented, nor was the transaction communicated to Rodman, in whose possession the cotton was suffered to remain. While so continuing, Foley became a bankrupt, and the day before the falling due of his note, which Rodman had placed, together with the cotton, in the hands of the defendant, as a security for money borrowed, Hutchison, called on Rodman and producing Foley’s order for delivery, which bore a date long antecedent, demanded the goods. These Rodman refused to deliver, alleging as reasons, the bankruptcy of Foley, and non-payment of his note, after the protesting of which the cotton was bought by the defendant.
    Rodman himself had since become a bankrupt, obtained his certificate, and testified that he did not consider the goods as left with him for storage.
    The jury having found a verdict for the plaintiffs to the full amount of the value of the cotton, the defendant now moved for a new trial, on the ground of the plaintiffs not being entitled to recover.
    Boyd, for the defendant.
    If Rodman has not by any act devested himself of the right to retain the goods against any purchaser from Foley, the innocent vendee of Rodman, will have the right he enjoyed. The property remained in Rodman’s hands, and as it was a chattel interest, possession was evidence of property. Besides, the second sale was two months after that attempted to be set up. It is settled that, wherever there is any *fraud, insolvency of the vendee, or failure of the consideration on the part of the purchaser, and the vendor can get the goods into his possession, he may retain against the buyer, and thus indemnify himself for the price. Owenson v. Mouse, 7 D. & E. 66; Goodall v. Shelton, 2 H. Black, 31.6. There is no case which contradicts this, unless it be one in 7 D. «Sí E. which was an exception. In Feize v. Wray, 3. East, 93, it was held that accepting bills did not hurt the right.
    This, then, establishes the right of Rodman, and over rules the. principle in. 7 D. &. E. as to a bill being payment. There was laches in the plaintiffs’ remaining with their order, in their pockets for two months without presenting, it, and when the cotton was looked at, it was without explaining it to be the result of an offer to sell. The antecedent debt to Bowne was good payment, nor docs its being an .existing debt invalidate the consideration; for the discharge of a previous demand is, both in law and equity, a valid consideration. To decide against the defendant will be to destroy commercial security.
    Hoffman, contra.
    The plaintiffs are equally Iona fide purchasers with the defendants ; and if the defendant has not a better claim than Rodman, the verdict must stand. The order was a constructive delivery by Rodman ; this was a voucher of property given by him to prove Eoley’s interest. The rule, then, is, when a man is enabled by the act or confidence of another,- to commit a fraud on a third perse®, the person by whom he is thus enabled shall bear the loss. In the case from East, and the others cited, this principle was not involved: This constructive delivery was so connected with circumstances, as to make the general rule still stronger against the defendant. The cotton was asked for, and shown as Eoley’s. This Was a plain act, confirming a construction of law; therefore, had the order been then presented, Rodman would, and must have delivered. The property passed by his conduct. It was an assent to the order, which, as the cotton was asked for in Foley’S name, Rodman must have known had been represented by Foley as bis. Possession, therefore, in contemplation of law, was in the plaintiffs, for' Rodman’s possession was the possession of Hunn and bis partners; is, wherever *there is a mixed possession of a personal chattel, it is considered as that of him who has right. Smith v. Smith, 2 Stra. 955. But on the defendant’s own showing he had only an equitable lien, this shall never overreach the title of a bona fide purchaser. Lempriere v. Pesley, 2 D. & E. 490. The payment from the defendant, euch as it is, was on the eve of bankruptcy. The cotton when put into the hands of Bowne, was on an executory contract. That with the plaintiff was. executed; and no-sale without payment, unless the contract expressly- give time, is executed :■ the right therefore not complete when it' is executory.

      Benson, in reply.
    The'silence of Hutchison, as to- the ob*. ject of his inquiry, exculpates Rodman from all blame.Suppose Foley- had come and asked to see his cotton, and after his insolvency- without bankruptcy, had demanded the cotton; or his assigns, under a commission, had done, so, could not Rodman have retained ? If he could against Foley’s assignees, then he could against the plaintiffs, and as he could do it, so can his vendee.

        а) X do not know what case tho learned counsel alludes to, as X cannot find any contrary to his position.

      б) It might, perhaps, he more correctly termed an actual delivery in law! See Hollingsworth v. Napier, 3 Caines’ Rep. 183 n. (a); the different kinds erf delivery, wb-t shall amount to them, what not, and their effects:

   Thompson, J.

I think a new trial ought not- to be granted. ■ The circumstances stated in the case, fairly warranted the jury in drawing the conclusion that the defendant ought to be considered as a purchaser, with full knowledge of all the circumstances, relative to the situation of this cotton. Ho time is stated when he made the purchase,, although Mr. Rodman himself, from whom he purchased it, was examined as a witness. It does, however, appear, that it must have been after Foley’s note to Rodman fell due, and had been protested for non-payment, which must have been some- time after the 1st of March, 1802.

The defendant acknowledged that the cotton was first put into his possession, to sell for Mr. Rodman: this could not have been until after Foley’s bankruptcy, because Mr. Rodman himself testified that his determination not to deliver the cotton, was made in consequence of Foley’s becoming a bankrupt. The cotton remained as it was, when Foley made the purchase, until after this period. Rodman finding his note from Foley would not probably bo paid, determined to retain the cotton, and, some time afterwards, must be presumed to have delivered it to the defendant, *first to sell, afterwards to remain as a pledge, but concluding, probably, that an actual sale would be better calculated to secure the cotton against the plaintiff’s claim, such sale was made, so that the defendant ought not to be viewed in a more favorable point of light than Mr. Rodman himself would be were he the defendant. The plaintiffs, however, cannot be considered as standing in the same situation as Foley would, were he plaintiff; they must be viewed as innocent bona fide purchasers. When application was made to them to purchase this cotton, they sent to Rodman and this cotton was shown them-as the property of Foley ; no pretence was made that he had any claim or lien upon it, and it is evident, at that time, he had no such pretensions, for John Rodman swears, that it was not until after Foley became bankrupt that he determined not to deliver the cotton. The plaintiffs, therefore, had every reason to believe, from the conduct of Rodman, that there would be no objections against delivering'this cotton whenever called for. There is no pre-tence of any agreement that the cotton was to remain in his possession as security for Foley’s note, which was payable in sixty days. The contract of sale was complete, ant, the note received as payment, and there can be no doubt that Foley might have legally demanded the goods imme-liately after the purchase. It certainly cannot be pretended, that on the sale of goods upon a credit, the vendor has a right to retain them as security for the payment of the purchase-money. But even admitting that, as against Foley, the goods might be stopped in transitu, it by no means follows, that, as against innocent purchasers, the same doctrine would apply. In the case of Lickbarrow v. Mason, 2 D. & E. 61, -it was decided that a consignor may stop goods in transitu, before they got into the hands of the consignee, in case of his insolvency ; yet if the consignee has assigned the bills of lading to a third person for a valuable consideration, the right of the consignor, as against Such third person, is devested. The right of the vendor to stop goods in transitu, in case of the insolvency of the vendee is a kind of equitable lien adopted by the law, for the purpose of attaining substantial justice, and not on the ground of rescinding the contract. In the case of Lempriere v. Pasley, 7 D. & E. 445 ; 2 D. & E. 490, Ashhurst, J. in delivering the judgment of the *cóurt, laid it down as a fundamental principle, that as between a person who has an equitable lien, and a third person who purchases the thing for valuable consideration, and without notice, the prior equitable lien shall not overreach the title of the vendee. As the plaintiffs in this case have paid a valuable consideration for the goods, and there is no color for imputing to them fraud or notice of any pretended lien by Rodman, a new trial ought not to be granted.

Livingston, J.

Were this a question between Foley and the present defendant, it would not, perhaps, have occasioned much difficulty. I should be inclined to think, that in such case he could not recover, without paying his note given to Rodman, and which was endorsed to Bowne. But when the rights of a fair purchaser intervene, the doctrine of stopping goods in transitu, which has been carried far enough, ought not to be strained in favor of the vendor, or, as is the case here, in favor of a creditor of the vendor to whom they were first pledged, and in satisfaction oí whose demand they were afterwards sold.

There certainly was a sufficient delivery hereto justify a sale by Foley to the plaintiffs. The cotton was shown by Rodman as his, and although the person to whom it was shown did not declare his object, it might reasonably be supposed he wanted to buy it, and yet no caution was given, nor any claim set up to the property by Rodman. After this, it would be hard indeed on the plaintiffs to postpone their right to that of the defendant, who took the property after the sale by Foley, to secure an antecedent debt. In the case of Owenson v. Morse, 7 D. & E. 66, the original purchaser brought his action to recover some articles of plate against the vendor, and set up a delivery of them to an engraver, as a delivery to himself. In such cases a court will go a great way to protect the right of the seller; and Lord Kenyon, considering it as an unjust attempt in the plaintiff to get the goods without paying for them, determined, and so did the other judges, that as the engraver was employed by the defendant, the goods were at most *in transitu, and the price not being paid, he had a right to retain them.

This case, as has been already stated, is very different/ It is that of a bona fide purchaser, to whom, or to whoso agent, the property was shown as Foley’s before the bargain was concluded. After this Rodman had no right to defeat íhé plaintiff’s claim by delivering the property to another, I am of opinion the finding of the jury was right.

Kent, J.

These facts present a struggle between bona fide creditors, which of them shall avoid a loss; and he who has used the best diligence, or has the legal advantage, ought to be preferred.

This case turns upon the question, whether there wa3 a delivery of the cotton by Rodman to Foley. Delivery in a sale, says one of the Civilians, may be either real, by putting the thing sold into the possession, (2 Ersk. 481,) or under the power of the purchaser, or it may be symbolical, when the thing sold does not admit of actual delivery. To illustrate this last instance, it is settled in the English law. agreeably to the rule in the civil law, (Dig. 41, 1, 9, 6; 1 Ersk. 194,) that where goods are ponderous, and incapable of being handed over, there need not be an actual delivery but it may be made by that which is tantamount, such as the delivery of the key of a warehouse, or by delivery of other indicia. But there must be a delivery in the one way or the other, according to the subject matter, or the property is not absolutely devested from the vendor, although the risk may be, in many respects, with the vendee. So in a variety of cases, (1 H. Bl. 363,) delivery may b&presumed from circumstances so as to vest the property in the vendee. If there be a destination of the goods by the vendor to the use of the vendee, by marking them, or putting them up to be delivered, or removing them for that purpose, the vendee may be entitled to act as owner. But in this case of a presumed delivery, the title of the vendor is not devested till the goods have come to the possession of the vendee: (Dig. lib, 19, tit. 1, 13 ; 7 D. & B. 64, 440; 1 Atk. 345 ; 5 D. & E. 490,) and he may, for just cause, re* tract the intended delivery ; he may detain them against the vendee till the price be paid-

in the present case, there was no delivery, in any sense, of the twenty bales of cotton; and as no application was *made to Rodman for a delivery until after the bankruptcy of Boley, he had an equitable lien on the goods for his debt, and that right being accompanied ■ with the actual possession, it is lawful for him to exert it a,gainst the plaintiffs, notwithstanding they were third persons and purchasers from Boley., He had equal equity with them, and in addition to that, he was clothed with the lawful possession, which gave him the paramount claim. To arrest the goods from the vendor under those circumstances, would, in my opinion, be unjust: negligence in this case was imputable to Boley and the plaintiffs. The cotton was suffered to remain in possession of Rodman, without any mark or destination of the property, until the failure of the vendee ; and of two innocent creditors, he who has used the most vigilance, or has the legal advantage, shall' be preferred.

I place my opinion entirely upon the ground that the possession of the cotton never passed from Rodman, and that he did not assign it to the defendant, until after the bankruptcy of Boley. I think, therefore, the defendant has the better title, and that the verdict ought to be set aside, on payment of costs.

New trial refused.

       Declaring a note to be good to one about to purchase it, or standing by in silence when it is transferred fpr consideration, is an estoppel in pais against a debtor. Watson's Ex. v. M'Laren, 19 Wend. 551. To make false statements of the payee respecting paper negotiated by him, available to the holder as an estoppel, so as to prevent such payee from setting up the de-fence of usury, they must have been made to induce the holder to purchase, end have been confided in, and in good faith acted upon by him; he must have heen deceived by them. Truscott v. Davis, 4 Barb. 495. Where a party, either by his declaration or conduct, has induced a third person to act in a particular manner, he will not afterward be permitted to deny tho truth of the admission, if the consequence would be to work an injury to such third person, or one claiming under him; Hazell v. Odell, 3 Hill, 215. But before a party is held to be thus concluded, it must appear: — 1. That he has made an admission which is clearly inconsistent with the evidence which he proposes to give; 2. That the other party has acted upon the admission; and 3. That the latter will be injured by allowing the truth of the admission to be disproved. Ib.
      See also with respect to estoppel in pais, Petrie v. Fester, 21 Wend. 172; Foster v. Newland, Id. 94; Demyer v. Souzer, 6 Wend. 436; Ruggles v. Sherman, 14 J. R. 446; Swick v. Sears, 1 Hill, 17 ; Frost v. Saratoga Martual Ins. Co., 5 Denio, 154; Welland Canal Co. v. Hathaway, 8 Wend. 480 Dewey v. Bordwell, 9 Wend. 95.


author: Per Curiam.

text:
    Depeyster against Warne.
    If proceedings be irregular, they will be set aside though the defendant do not swear to merits, and the plaintiff swear there are none.

    Harison moved to set aside the default, interlocutory judgment, and'all subsequent proceedings, on affidavits of the defendant’s attorney and his clerk, stating notice of retainer served at the office of the opposite attorney, (which was acknowledged to-have been received by a person then iu the office of the plaintiff’s attorney, and acting either as clerk, agent or partner,) and also setting forth service of notice of special bail having been filed, an entry of which, and of service of retainer, was made in the register of the deponent.

      Evertson opposed the application on an affidavit made by himself, stating the debt to be on a promissory note, in which there was no defence, and that if the defendant could make any, he had several times offered to give up the judgment. That the person mentioned in the affidavits on behalf of the defendant as being a clerk, agent, or partner, was neither the one nor the other; that neither the deponent nor any of his *clerks knew of any person being retained as an attorney for the defendant though in the register of the deponent was entered a receipt of a service of notice of bail. That the defendant was in execution, and an insolvent. From these circumstances, and because the defendant had not sworn to merits, it was contended that the default and proceedings ought to stand.
    Harison, in reply, insisted, that whether the defendant had merits or not was immaterial. The plaintiff had been irregular* and the practice of the court must, in all suits, however well founded, be adhered to.

       S. P. Howell v. Demiston, 3 Caines' Rep. 97. Por the effect of merits where the proceedings are regular, see Oogswett v. Vanderlergh, 1 Caines' Rep. 157 n. (a)

   Per Curiam.

There is strong reason to believe that notice of retainer was duly served, and though no merits are sworn to, we cannot depart from our rules. Let the default, judgment, and all subsequent proceedings, be set aside with costs; but on condition that the defendant does not bring any action for false imprisonment.

Motion granted.


text:
    Baker and Sloane against Sleight, Sheriff of the County of Ulster.
    It is not necessary in an affidavit to change the venue, to state the cause of action. If it be not transitory it should be shown by the opposite side.
    The influence from the mere office of sheriff not sufficient cause to changa the venue.

    Evertson, on an affidavit not specifying the ground of action, moved to change the venue from the county of Dutchess to that of Ulster.

      Rophins opposed it on a counter affidavit,
    stating a belief, that in consequence of the influence the defendant possess ed in Ulster from his office, a fair and impartial trial could not be had there. He insisted also on the defectiveness oi the plaintiff’s affidavit, in not setting forth the ground of action, and that it ought therefore to be presumed it was not a transitory suit.
   Per Curiam.

The court cannot intend that the action is not transitory; it ought to have been shown by the defendant, and the influence of a sheriff’s office never can prevent an impartial trial, Take your rule.

       Sec Zobieskie v. Bauder, 1 Caines’ Rep. 488 n.(a)


author: Per Ouriam.

text:
    Pell against Bunker.
    Practice as to vacating commissions.
    In this cause Hawes moved to in part vacate a commission sued out in in November last, so as to go to trial notwithstanding, at the next circuit. See Kirby v. Watkies, 1 Caines’ Rep. 503, n. (a)

      *D. A. Ogden opposed it,
    on the ground that eight months had not elapsed since it was issued, and relied on this as the established practice, in cases of commissions to Europe.
   Per Ouriam.

Granting the motion will do no injury; the time may or may not elapse before the cause is brought on, and it does not prevent, even then, the showing of cause to further postpone the trial.

Motion granted.


author: Per Guriam.

text:
    Coles, Titford and Brookes, against Thompson.
    Commission.
    The court had, the last term, (1 Caines’ Rep. 517,) denied a motion for judgment as in case of nonsuit for not pro-ceeeding to trial, on the plaintiffs’ stipulating to try at the last sittings for the city and county of New-York, nine months having elapsed since issuing the commission in the cause. The plaintiffs not having proceeded agreeably to that stipulation,

      Boyd moved again for judgment as in case of nonsuit.
    Mknro, contra,
    read an affidavit stating the commission to have been mislaid by the defendant’s commissioner, to have been found, and was shortly expected to be returned.
   Per Guriam.

The motion must be refused; but the plaintiff must pay costs and stipulate anew. (See vol. 1, p. 7, m. (a) and p. 503, n. (a)

Motion denied on costs and stipulating.


text:
    Clason against Gould.
    In an action for publishing a libel, the court will discharge a judge’s order for holding to special bail, unless special cause be shown by affidavit.
    This was a motion on the part of the defendant to be discharged from a judge’s order, directing him to be held to bail in 1,500 dollars. The suit was for a libel, in styling the plaintiff “ a late German convict.” The plaintiff, in his affidavit, stated the charge, and declared the same to be false and malicious, without adding any thing more.
   Per Guriam.

The defendant must be discharged. The affidavit does not show a cause of action sufficient to hold to bail. In a suit for defamation, whether the defamation be by words or writing, the plaintiff is not entitled to hold Jo bail, except in slander of title, unless some special cause be shown. No special cause is disclosed in the present case. To allow *bail here, would be to allow it in every case of defamation. There is no rule or guide given for the discretion of the judge or court, and that discretion, upon such an affidavit as the present, must necessarily be arbitrary, which the law will not allow.

Motion granted.

       Eor the present practice with respect to arrest, see Code of P., secs 178 to 184.-


author: Thompson, J. Keht, J.

text:
    Seixas and Seixas against Woods.
    In an action on the case for selling one article for another, there must ba either a warranty or fraud. A sound price does not imply a warranty of soundness. The description in a bill of parcels is no warranty.
    This was an action on the case for selling peachum wood for brazilletto. The former worth hardly anything, the latter of considerable value.

      The defendant had received the wood in question from a house in New Providence, to w'hom he was agent, and in the invoice it was mentioned as 'brazilletto. Ho had also advertised it as brazilletto, had shown the invoice to the plaintiffs, and had made out the bill of parcels for brazil-leito. But it was not pretended that he knew that it was peachum, nor did the plaintiffs suspect it to be so, as it was delivered from the vessel, and picked out from other wood by a person on their behalf. In short, neither side knew it to be other than brazilletto, nor was any fraud imputed. On discovery, however, of the real quality of the wood, it was offered to the defendant, and the purchase-money demanded. On his refusal to accept the one, or return the other, as he had remitted the proceeds, the present action was brought, in which a verdict was taken for the plaintiffs, subject to the opinion of the court.

      Hoffman, for the plaintiffs.
    The simple point is whether the party who is here, though an agent, be not liable. If the credit be to the agent, he will be liable; but not if it be' to the principal. This is like the case of a captain of a ship who is known to be tbe agent of bis owners, but still, for necessaries furnished, is liable on his contract,  In these cases, the party has a triple remedy, the captain, owner and ship: therefore, though we may have a remedy against the principal, it is by no means an exoneration of the agent. In Macbeath v. Hajdiman, 1 D. &. E. 181, it is acknowledged an agent may make himself responsible on his contract, but government being, in that case, made the debtor by the plaintiff, it was determined no credit wa3 given to the defendant. The knowing, therefore, that there is a principal, is not giving credit to him. The bill of parcels is complete evidence that the defendant made the sale in his own name, not on account of his principal ; *he is, therefore, clearly answerable. Suppose a consignment sent to this country, and a purchase from the consignee, are we driven to look abroad ? But it will be contended, that admitting the agent is liable, still it must be with this qualification, that he has not paid over the money. Buller v. Harrison, Cowp. 566, will be relied on for this. But there the money was paid by mistake, and the agent did not accelerate; here he took an active step ; he sold and received profits ; he was not a mere recipient of money paid to him voluntarily. But there was no remittance in this case. It is not a remittance in point of law. It was made in January, 1801, a month before the note given in part payment fell due, which was not till the next month. How, then, could this return cargo, transmitted ■ in January, be a remittance of money not receivable till February ? Suppose, when the note fell due, the fact of the wood being different -from that for which it was purchased had been known, payment had been refused, and the note put in suit by the defendant; would not these circumstances have been a complete defence? The description of the wood, in a •bill of parcels, is as fall a warranty of its quality, as a description of a vessel’s being American, in a warranty in a policy of assurance. Though the contracts are different, the rules of construction ought to be the same. If so, and a warranty was created, then, on the principles in insurance cases, parol evidence was inadmissible. To evince the first position with which we began, Gonsalez v. Sladen, Bull. H. P. 130, is fully in point; for it is there laid down, that a factor beyond sea may be sued by a vendor for goods purchased on account of his principal, “ because,”- adds the author of the Lex Mercatoria Americana, (1 Lex Mer. Amer. 401,) from whom the case is cited, “ it would otherwise be impossible to carry on trade; for who would trust a person unknown, and a thousand miles distant ?”

      Woods and Harison, contra.
    The remittance is with us considered as important. In addition to this we shall contend that in all cases like this, unless there be a warranty, scienter, or fraud, the defendant is not responsible. These three things are indispensable. As to a warranty, there is nothing like it, unless the mere representation ^calling it brazilletto be so. The plaintiffs were as capable of judging as the defendant. If otherwise, it was the plaintiffs’ duty to have asked the defendant, do you warrant? The mere saying it was brazilletto did not warrant it, for it is not every assertion that will make a warranty. To render it so,.Buller, J. says, in Pasley v. Freeman, 3 D. & E. 57, it must appear by evidence that it was 'so intended. If, then, it was not sworn to at the trial, it cannot now be supplied.' The transaction on the part of the defendant was perfectly fair; every information ha himself had was given ; every paper and document relating to the article shipped, were laid .before the plaintiff, who was left to exercise his own judgment on the article, and the communications respecting it. In Springwell v. Alien, Aleyn, 91, “for falsely and maliciously selling a horse to the plaintiff, as the proper horse of the defendant, ubi re vera, it was the horse of Sir J. L. because the plaintiff could not prove that the defendant knew it not to be his own horse, for the declaration must be that he did it fraudulently, or knowing it to be not his own horse, for the defendant bought the horse in Smithfield, but not legally tolled, the plaintiff was nonsuited.” So in Dewding v. Mortimer, 2 East, 452, n. the scienter was held necessary to be proved. The same doctrine is to be found in 1 Sid. 146. Lealdns v. Clissel, S. C. 1 Keb. 522. Proof of an assertion will not maintain the action; the plaintiff must establish the scienter. A mere insertion in a bill of parcels can never amount to warranty; for that purpose, technical words are necessary. The contents of a bill of parcels are never obligatory. 12 Vin. 6 E. In this respect, it is the custom of trade invariably to make out the bill in the name of the agent. But the action ought to be against the principal, unless in cases of mala fides, or notice. Sadler v. Evans, 4 Burr. 1986. The notice is not contended, and as to malajides, {he case expresses the very reverse. In all contracts for sale, every person is supposed acquainted with the subject matter. All purchasers, in presumption of law, are deemed competent judges of what they are about to buy; and if they will purchase without attention to circumstances,- the *maxim of caveat emptor will apply- This doctrine is fully recognized in Parkinson v. Lee, 2 East, 314. The seller of a parcel of liops, with a latent defect, which he did not know of, and without warranty, or fraud, held not to be answerable though they turn out unmerchantable. For the vendee is supposed to be as competent a j udge of the commodity as the vendor. When he is not, and doubts his own abilities, he requires a warranty ; and the reason that it is held of such force in law, is because a trust is then reposed in the seller, on the faith of which alone the buyer acts. In Dowding v. Mortimer, already referred to, the declaration stated “ that the plaintiff bargained with the defendant, to buy of him a certain musket, as and for a sound and perfect musket, at and for a large price, to wit, 21. 12s. 6d and that the defendant then and there knowing the said musket to be unsound, broken and imperfect, then and there sold the said musket to the plaintiff, as and for a sound and perfect musket.” Yet it was held there was no warranty, and being so, it must be proved that it was done scienter by the defendant, otherwise there can be no recovery. There is no analogy between the ease put as to warranties in polices. There the subject matter of the contract is, that there shall be an American ship; if there is none, there is no contract. The plaintiff made his agreement with the defendant, as an agent; he, therefore, can never say he is a principal. It follows, therefore, that the present is the common case of agent and principal, in which the vendee must have his redress over. But it is insisted that the money has not been legally remitted, the return cargo being sent previous to the receipt of the cash on the note of the plaintiffs, which did not fall due till the month after the pretended remittance, as it is termed, was made. For this BuTler v. Harrison has been cited; but if that can be attended to, it will be seen that it is strongly in our favor. For it expressly goes to prove, that when any step has been taken on the credit of the funds received by the agent, in consequence of which his situation with regard to his principal is changed, it shall be deemed to be a payment over. Here we have acted on the faith of this note, and made a large remittance, which still leaves Young and Monteil in our debt; this, ^therefore, it is presumed, is a remittance; and, therefore, a perfect exoneration of the defendant.
    Hoffman, in reply.
    If the facts in the case do not amount to a warranty, it will hardly be possible to create one. This court has decided similar circumstances to amount to a warranty, in a case where one drug was sold for another. The determination from 2 East, 314, was on a sale by sample, in which the court held the vendor not liable for a deterioration arising from the known nature of the article. And surely, as to the remittance, it is incon* gruous to say that has been sent which has not been received. It might perhaps avail between agent and principal, but not when a third person is concerned.

         The effect of a warranty on a sale of goods being to oblige the person by whom it is made to indemnify the vendee against all losses induced by a failure of the warranty, however innocent the warrantor may bo, courts of law appear to have been very cautious in subjecting to such wide extended liability. It is, therefore, a general rule, that on the sale of chattels there is not any implied warranty, unless as to the title. Hermance v. Vernoy, 6 Johns. Rep. 5. That to constitute a warranty it must be express, and it is not raised by a sound price, or a mere affirmation of the quality or kind of the article sold; (Defreeze v. Trumper, 1 Johns. Rep. 214; Holden v. Dakin, 4 Johns. Rep. 421,) nor by a mere affirmation of the value; (Davis v. Meeker, 5 Johns. Rep. 354,) nor, according to the case in the text, by a written description ; and where the subject is of dubious quality, in which common judgments might be deceived. Lord Kenyon has ruled the same. Therefore, where an auctioneer, on a sale of pictures, set, in the printed catalogue, opposite to each, the name of a painter, his lordship determined that it did not amount to a warranty of the picture’s being the work of such artist. Jendwine v. Slade, 2 Esp. Rep. 572. But where a substantive fact was specified in an emphatic manner, by printing in the articles of sale in italics, that an estate was “free-from encumbrances,” the court of common pleas held that it amounted to a warranty. Gunnis v. Erhart, 1 II. Bl. 289. Where, on a sale by auction, the duty may, on the vendor’s doing certain acts, be avoided, if the auctioneer say that he has taken such precautions that if the vendor’s price be not bid, there will be no sale, and the duty not payable, it is a warranty against incurring the duty, though the auctioneer act in good faith, and be mistaken as to the legal effect of what he did. Capp v. Topham, 6 East, 392. The reason of this decision may perhaps be, that the auctioneer was acting in the line of his vocation. Where a servant is employed to sell a horse, he has an implied authority to warrant his soundness; (Alexander v. Gibson, 2 Camp. 555,) so a broker, authorized to advertize a general ship for any port, to warrant that she shall sail with convoy. Rinquist v. Ditchell, Abb. on Ship, part 2, p. 8. If it be necessary to proceed on the warranty, the action may be maintained against him who made it, though he plead partnership in abatement, provided he sold as his separate property, and gave the warranty solely. Clark v. Holmes, 3 Johns. Rep. 148. But where case was brought for a deceit by means of a joint warranty, on a joint sale of joint property, proof of a separate sale and warranty of the joint property, by one of the defendants, who sold it as his own, will not support the action. Weal v. King, 12 East, 452. If the action be for deceit in the sale, or assumpsit for not delivering on a sale of goods those of a certain description, but others of a different quality and sort, fraud must be alleged and proved. Snell and others v. Moses and Sons, 1 Johns. Rep. 90. But, after verdict, if an affirmation be stated in the count, which proceeds to set forth that “the plaintiff by reason of the said affirmation of the said defendant, was fraudulently and falsely deceived,” the fraud and deceit are sufficiently alleged, as has been determined in the court of errors, in Bayard v. Malcolm, 2 Johns. Rep. 550, reversing a contrary decision of the supreme court in the same case, (1 Johns. Rep. 345,) which seems to be the better law, though of no authority. Where the scienter was expressly laid, proof of knowledge in the agent beyond sea, was held sufficient in an action against the merchant, his principal, in whom the jury found there was not any actual deceit, but that it was in the agent Hern v. Nichols, 1 Salk. 289.

         Rich v. Coe, Cowp, 636, but the doctrine is laid down rather too broad m this ease. See Farmer v. Davis, 1 D. & E. 108. In a home port the ship is not liable.

       This position of the author of that hook has been subsequently confirmed in Houghton v. Mathews, 3 Bos. & Pull. 490, by Chambre, J, who there says, “ where the principal resides abroad, he is supposed to be ignorant of the circumstances of the party with whom his factor deals, and therefore the whole credit is considered as subsisting between the contracting parties.”

         Pl. 1, it is supposed is intended. Degelder v. Savory.

       It lias been said this maxim relates only to lands. See 1 Lex Met Amer. 312, citing a case from Dallas.

       There was a warranty that the hops should be of like goodness as the sample, and the bulk of them were so at the time of sale. The case seems to establish this principle, that if an article be of a quality equal to what warranted at the time of sale, the vendor is not liable for subsequent deterioration, arising from a latent defect of which he was ignorant.

   Thompson, J.

Two questions arising out of this case are presented for consideration:

1. Whrther an action can be maintained to recover back the CQ.j'/i deration money, paid under the circumstances ■stated In the case ? and if so, then,

2. "Whether the defendant, who acted only as agent or factor, can be made responsible ?

From the fact stated with respect to the first point, it ap pears that there was no express warranty by the defendant, or any fraud in the sale. The w'ood was sold and purchased as Irazilletto wood, and a fair price paid for such wood, when in fact the wood was of a different quality, and of little or no value. The plaintiff’s agent, who made the purchase, saw the wood when unloaded and delivered, and did not discover or know that it was of a different quality from that described in the bills of parcels; neither did the defendant, who was only consignee of this cargo., know that the wood was not brazilletto. The question then arises, whether there was an implied warranty, so as to afford redress to the plaintiffs, or whether the maxim of ca> veat emptor must be applied to them. From an examination of the decisions in courts of common law, I can find no case where an action has been sustained under similar circumstances: an express warranty, or some fraud in the sale, are deemed indispensably necessary to be shown. In the case of Chandelor v. Lopus, (2 Cr. Rep. 4,) in the exchequer-chamber, it was decided, that an action of trespass on the case would not lie for selling a jewel, affirming it to be a bezoar stone, *when in truth it was not, unless it be alleged that the defendant knew it was not a. bezoar, or he warranted it to be such. And in the case of Springwell v. Allen, (2 East, 448, in note,) it was adjudged that the scienter or fraud was the gist of the action, when there was no warranty. Mr. Wooddeson, in his Lectures, (2 Woodd. Lee. 415,) says, in the English law, relating to this subject, a very unconscientious maxim seems long to have prevailed, which was expressed or alluded to by the words caveat emptor, signifying that it was the business of the buyer to be upon his guard, and that he must abide the loss of an imprudent purchase, unless the goodness and soundness of the thing sold be warranted by the seller. But this doctrine, he says, is now exploded, and a more reasonable principle has succeeded, that a fair price implies a warranty, and that a man is not supposed, in the contract of sale, to part with his money without expecting an adequate compensation.

Here we find a full and complete recognition by this commentator, that the law once was as laid down in the above cases; and the modern and improved doctrine, as he calls it, however reasonable and just it may at first seem, does not appear to be fortified and sanctioned by adjudged cases. They all determine, either that there must be an express warranty, or some fraud on the part of the vendor. In the ease of Bree v. Holbech, (Doug. 655,) assumpsit wag brought to recover back money paid as the consideration for the assignment of a mortgage which turned out to be a forgery. The defendant being an administrator with the will annexed, and finding the mortgage among the papers of the testator, assigned it bona fide, not knowing it to bo a forgery; and it was adjudged that he was not liable to refund, he having acted in good faith; and there being no covenant for the goodness of the title, that it was incumbent on the plaintiff to have looked to the goodness of it. And .in the case of Stewart v. Wilkins, (Doug. 18,) it was ruled that assumpsit was the proper form of action where there is an express warranty; and Lord Mansfield there said, that selling for a sound price, without warranty; may be a ground for an assumpsit; but in such case it ought to be laid that the defendant knew of the unsoundness. 2 Bast, 446. Again, in the case of Williamson v. Allison, the same subject in some measure came under review ; *and the law, as laid down in the cases of Springwell v. Allen, and Chandelor v. Lopus, above cited, was fully recognized. Eonblanque, in his valuable Treatise of Equity, (1 Fonb. 360, note h,) speaking of the justice and propriety of this principle, says, “ To excite that diligence which is necessary to guard against imposition, and to secure that good faith which is necessary to justify a certain degree of confidence, is essential to the intercourse of society. These objects are attained by those rules of law which require the purchaser to apply his attention to those particulars, which may be supposed to be within the reach of his observation and judgment; and the vendor to communicate those particulars and defects, which cannot be supposed to be immediately within the reach of such attention If the purchaser be wanting of attention to those points, where attention would have been sufficient to protect him from surprise or imposition, the maxim ca* ■ veat ermptor ought to apply. But even against this maxim he may provide, by requiring the vendor expressly to war rant that which the law would not imply to be warranted. If the vendor be wanting in good faith, fides servanda is the rule of law, and may be enforced, both in equity and at law.” These observations, I think, apply with peculiar force in the case before us. The agent of the plaintiffs, who made the purchase, was present at the delivery of the wood ; and the defect now complained of was within the reach of his observation and judgment, had he bestowed proper attention.- I am satisfied that according to the settled decisions in the English courts, either an express warranty, or some fraud or deceit on the part of the vendor, is necessary to be shown, in order to entitle the purchaser to the remedy sought after in the present case. I see no injustice or inconvenience resulting from this doctrine, but, on the contrary, think it best calculated to excite that caution and attention which all prudent men ought to observe in making their contracts. I am therefore of opinion with the defendant, on the first point, which renders it unnecessary for me to examine the other question raised on the argument.

Keht, J.

This is a clear case for the defendant. If upon a sale there be neither a warranty nor deceit, the purchaser purchases at his peril. This seems to have been the ancient, and the uniform language of the English law, and *the only writer of authority, that calls this doctrine in question, is professor Wooddeson, in his Vinerian Lectures, and he does not cite any judicial decision as the basis of his opinion. In the case of Chandelor v. Lopus, (Cro. Jac. 4,) it wras determined in the exchequer, by all the judges except one, that for selling a jeAvel, which was -affirmed to be a bezoar stone, when it was not, no action lay, unless the defendant knew it was not a bezoar stone, or had warranted it to be one. This appears to me a case in point and decisive. And in the case of Parkinson v. Lee, (2 East, 314,) it was decided, that a fair merchantable price ¿lid not raise an implied warranty; that if there be no warranty, and the seller sell the thing, such as he believes it to be, without fraud, he will not be liable for a latent defect. These decisions are two centu ries apart, and the intermediate cases are to the same effect. Co. Litt. 102, a; Cro. Jac. 197; 1 Sid. 146; Yelv. 21; 2 Ld. Raym. 1121; per Holt, Ch. J.; Doug. 20. Aleyn, 91, cited 2 East, 498, natis. By the civil law, says Lord Coke, every man is bound to warrant the thing that he selleth,-albeit there be no express warranty ; but the common law bindeth him not, unless there be a warranty in deed, or law. So Fitzherbert, (N. B. 94, C.) says, that if a man sell wine that is corrupted, or a horse that is diseased, and there be no warranty, it is at the buyer’s peril, and his eyes and his taste ought to be his judges in that case. In the case cited from 2 East, the judges were unanimous, that the rule applied to sales of all kinds of commodities. That without a warranty by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects, and that there is no instance in the English law of a con* trary rule being laid down. The civil law, and the law of those countries which have adopted the civil as their common law, is more rigorous towards the seller, and make him responsible in every case for a latent defect, (see the Dig. lib. 1, tit. 2, c. 13, n. 1, which gives the very case of selling vitiated wood,) and, if the question was res integra in our law, I confess I should be overcome by the reasoning of the Civilians. And yet, the rule of the common law has been well and elegantly vindicated by Eonblanque, as most happily reconciling the claims of convenience with the duties of good *iaith. It requires the purchaser to apply his attention to those particulars which may be supposed within the reach of his observation and judgment, and the vendor to communicate those particulars and defects which cannot be supposed te be immediately within the reach of such attention. And even against his want of vigilance, the purchaser may provide, by requiring the vendor expressly to warrant the article. The mentioning the wood as brazilletto wood, ii, the bill of parcels, and in the advertisement some days previous to the sale, did not amount to a warranty to the plaintiffs. To make an affirmation at the time of the sale, a warranty, it must appear by evidence to be so intended; (Buller, J., 3 D. & E. 57; Carth. 90; Salk. 210;) and not to have been a mere matter of judgment and opinion, and of which the defendant had no particular knowledge. Here it is admitted the defendant was equally ignorant with the plaintiffs, and could have had no such intention.

The cases in which the ship, in a policy of insurance, has been described as neutral or American, and that description held to be a warranty, are not at all analogous to the present case. The policy is a special contract, in which the whole agreement is precisely stated, and no question was ever made in those cases, but that the assured knew, and intended to be understood to mean, that the vessel was of the character described. I am therefore for the defendant.

Lewis, Oh. J. contra.

Judgment for the defendant.

       la executed contracts for the sale of personal property, where there is no fraud or express warranty, the purchaser takes the property at his own risk as to quality and condition. Moses v. Mead, 1 Denio, 378. See in this respect also 5 Denio, 617; Salisbury v. Stainer, 19 Wend. 159; Johnson v. Titus, 2 Hill, 606; Defreeze v. Trumper, 1 J. R. 274; Davis v. Meeker, 5 J. R. 355; Holden v. Daken, 4 J. R. 421; Thompson v. Ashton, 14 J. R. 316; Wright v. Hart, 18 Wend. 449; Same Case, 17 Wend. 267 ; Cunningham v. Spier, 13 J. R. 392; Sands v. Taylor, 5 J. R. 395; Sweet v. Colgate, 20 J. R. 196; Snell v. Morris, 1 J. R. 96; Parry v. Aaron, Ib. 129; Flemming v. Slocum, 18 J. R. 403; Case v. Boughton, 11 Wend. 106. But where the contract is executory, it carries an obligation that it shall be at least merchantable : if it Come short of this, it may be returned after the vendee has had a reasonable time to inspect it; and in an action for the recovery of the stipulated price, the vendor will be reduced to a quantum meruit. Howard v. Hoey, 23 Wend. 350.
      It is an exception to the general rule, which implies a warranty on a sale by sample, that the bulk of the article shall correspond with the sample. Moses v. Mead, 1 Denio, 378. See also on this point, Boorman v. Jenkins, 12 Wend. 566; Bebee v. Roberts, Id. 413; Oneida Man. So. v. Lawrence, 4 Cow. 440; Gallagher v. Waring, 9 Wend. 20; Andrews v. Kneeland, 6 Cow. 354; Waring v. Mason, 18 Wend. 425.
      And in a sale of provisions for domestic use, the vendor is bound to know that they are sound and wholesome at his peril; a warranty is implied. Moses v. Mead, 1 Denio, 378; Van Bracklin v. Fonda, 12 J. R. 468. A warranty of title is also implied on the sale of a chattel. Defreeze v. Trumper, 1 J. R. 274; and see on this point, Rew v. Barber, 3 Cow. 272; Herman v. Vernoy, 6 J. R. 6; Sweet v. Colgate, 20 J. R. 203; Vibbard v. Johnson, 19 J. R. 77; McCoy v. Archer, 3 Barb. 323; Livingston v. Bain, 10 Wend. 384.

       There are no particular words prescribed by law to make out a warranty; but it is essential that the affirmation made at the time of the sale be intended by the parties as a warranty, and not as the mere expression of an opinion by the vendor. Sweet v. Colgate, 20 J. R. 203; Oneida Man. So,
        v. Lawrence, 4 Cow. 440; Roberts v. Morgan, 2 Cow. 438; Whitney v. Sutton, 11 Wend. 441; Duffee v. Mason, 8 Cow. 25; Cramer v. Bradshaw, 10 J. R. 484; Molden v. Dakin, 4 J. R. 421; Cook v. Moseley, 13 Wend. 271; Chapman v. Murch, 19 J. R. 290.


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

text:
    Ely against Hallett.
    If the assured have information of a violent storm the day after his vessel has sailed, and he states only that there has been blowing weather on the coast, it is a misrepresentation which will avoid the policy.

    UPON a policy of insurance on freight of goods, the defendant relied on testimony, showing that the plaintiff wás informed, prior to making the insurance, that a very severe storm had happened at Norfolk shortly after the sailing of the vessel, which would in all probability endanger her safety, and which circumstance he did not communicate to the defendant.
    Upon this testimony the jury returned the following verdict: “ That the plaintiff was possessed of information that a violent storm took place at Norfolk, about eleven hours after the vessel sailed, and that he did not communicate such information to the defendant. They further find, that there is no evidence to prove that such information was in the knowledge of the defendant by any other means-But that a communication was generally made to the de fendant, before be signed tbe policy, that there bad been blowing weather, and ^severe storms on tbe coast after tbe .vessel had sailed; but without any reference to the particular storm first above mentioned. And they also find that the danger arising from the storm first above mentioned did increase the risk.” A case stating this finding was made for the opinion of the court, whether the plaintiff was entitled to recover; if so, then judgment to be entered for him, as for total loss; if not, then for the ■ defendant, either party to be at liberty to put the case into the form of a special verdict.

      Higgs, for the plaintiff.
    The verdict is so imperfect that at least a new trial ought to be granted. The jury ought to have found particularly the nature and extent of the storm, before they can be warranted in drawing the inference of an increase of risk. It might have been violent at Norfolk, and yet a vessel sailing twelve hours before, might have been perfectly out of the reach' of its influence, as it often happens that gales of wind are not felt at a considerable distance from any given spot. They might mean that the storm, when compared with good weather, increased the risk, but not when compared with the blowing weather which was communicated. An insured is not bound to particularize storms, and recount all that have blown. A general information is enough, because no exact line can be drawn to settle, on principle, the degree and period of the storm.
    • Hamilton and Boyd, contra..
    The finding is express that the risk was increased; this is enough ; for it is a principle in concealments, that the ultimate event arising from it is immaterial, if the hazard be augmented, because the question is, what effect would the disclosure have had on the underwriter at the time of underwriting, either as to his premium or engaging in the contract. Materiality and immateriality of communications are for the jury, and they have determined the circumstance material. The storm was in the plaintiff’s knowledge ; his silence therefore vitiates tbe policy. Tbe verdict is certain to a common intent, and as it is in tbe nature of a special verdict, tbe court cannot draw inferences of fact, tbougb they may of law. The requisites asked for in the verdict, as to distance, &c., are impossible ; nor is it difficult to draw tbe line as to communications. Not every storm, but those which enhance tbe risk, such as tbe *one now found are to be disclosed. In Seaman v. Fonnereau, 2 Stra. 1183, tbe concealment of a storm happening near where a vessel was seen, was held fatal, tbougb she was not lost in it.

      Riggs, in reply.
    Tbe rules of pleading do not apply to verdicts; tbe one in this case is too particular for tbe general conclusion, and not particular enough for tbe present finding.

       See Ely v. Low, 1 J. C. 1; Williams v. Delafield, 2 Cai. R. 329; 2 Cai. R. 224; S. C. 1 J. R. 150, (2 J. R. 520.) What is a representation, see difinition of) in case of Vandervoort v. Smith, 2 C. R. 155; Le Roy v. United Ins. Co., 1 J. R. 343.

       The rule as to concealment seems to be, that all circumstances in the knowledge of the assured only, which increase the particular risk, must be disclosed; but that general circumstances which apply to all policies of a (Similar description, however great they may render the risk, need not be related; because, to qualify for the avocation of an underwriter, a knowledge of such circumstances is necessary, and therefore is presumed. It follow* from the above principles, that where an interest is of a special kind, it' ought to be disclosed, unless it be the duty of the underwriter to acquaint • himself of it.
      According to the first branch of the rule above laid down, it has been decided that a policy was vacated, where the assured had heard that a vessel like his was taken, and did not disclose it; (Da Costa v. Scandaret, 2 P. Wms. 110,) so where the clerk of the assured knew of the loss of the vessel upon the day on which he wrote for insurance; (Stewart v. Dunlop, Park, 276,) and where the agent of the assured knew of a paper stuck up at Lloyd's, stating the vessel underwritten had been seen at a certain place “deep and leaky,” and did not disclose it, the policy was held to be void. Lynch v. Dansford, 14 East, 494.
      Where a vessel has sailed from her port of loading, and is insured at an intermediate port “ at and from," to that of her destination, “ the adventure to begin from the loading," concealing that the port “ at and from" whence underwritten, is not the port of loading, but an intermediate port, is fatal. Hodgson v. Richardson, 1 Black. Rep. 463.
      Where the voyage may be completed between the time at which a vessel Is expected to sail, and the day of effecting the policy; or where the relative proportion between such interval and the length of the voyage is important, not mentioning the day of sailing, or expected sailing, is a concealment; for wherever a' vessel may, from such a lapse of time, be supposed a missing ship, the day of sailing, or expected sailing, must be disclosed. Webster v. Forster, 1 Esp. Rep. 407; Willes and others v. Glove, 1 N. R. 14. Therefore, upon effecting a policy for a voyage of from five to fourteen days a month after a vessel is ready to sail, that fact must be disclosed. M'Andrews v. Bell, 1 Esp. Rep. 373. The not specifying the time at which a vessel sails, or is expected to sail, has been held to vacate the policy, (Johnson v. Phœnix Ins. Co., 1 Cond. Marsh. 470 n.(74,) unless where the jury, by a second finding for the plaintiff, after a- full submission of the facts, determine it to be immaterial; (Livingston v. Delafield, 1 Johns. Rep. 552,) for whether the fact concealed be material or not, is for their consideration. Per Lord Mansfield, in Hodgson v. Richardson, ubi sup; Littleddk v. Dixon, 1 N. R. 151; Livingston v. Delafield, ubi sup. And it is said that a good criterion for the regulation of the jury, is whether, in their opinion, the fact suppressed would have induced a higher premium, or a total refusal to underwrite. Murgatroyd v. Crawford, 3 Dall. 491.
      In conformity to this principle, where it appeared in evidence that disclosing the arrival of a second fast sailing coppered vessel out of a fleet, would not have varied the premium on a dull sailer, that was not coppered, and not deemed a missing ship, the concealment of the arrival of the second vessel was held immaterial. Littledale v. Dixon, ubi sup.

      when the voyage is from a belligerant colony to a neutral port, and thence to the mother country of the colony, that the cargo had not been landed in the neutral territory must be communicated; (Kohne v. Ins. Co. N. A., 1, Cond. Marsh. 473 n.(75,) but when the voyage is from a belligerant country M» a neutral port, an ulterior destination to a belligerant colony need not; (Steinbach v. Columbian Ins. Co., post, 129,) for it does not increase the risk of the particular voyage. Whatever does augment it must be told. Therefore that the insured, though a neutral citizen, carries on trade in a bellige-rant kingdom, must be mentioned on effecting a policy even in his own country; (Arnold & Ramsey v. Unit. Ins. Com., Lex Mer. Amer. 307; Juhel v. Rhinelander, 2 Johns. Cas. 120; Bodny v. Un. Ins. Co., 1 Cond. Marsh, 413,) so a letter of instructions containing matter which would expose the property to danger under principles of decision of a belligerant court of vice-admiralty, whether those decisions be warranted by the law of nations or not;' (Sperry v. Del Ins. Co.. 1 Cond. Marsh. 413 n.,) or what, according to established adjudications of belligerant courts of vice-admiralty, will be a ground of condemnation. Marsh v. Union Ins. Co., id. ibid. But that a circumstance made material by an arbitrary ordinance of a foreign power, of which both parties wore ignorant, and of which neither was obliged to inform himself) was not communicated, does not affect the policy; (Mayne v Walter, Park, 263,) nor on a policy to an open port on lawful goods, effected by á neutral in his own country, that they were contraband of war. Seton v. Low, Lex Mer. Amer. 303. The reason given for this decision is, that to a neutral all goods are lawful; it might also be considered (whidh perhaps would be the better ground of determination) the duty of the underwriter to inform himself of their nature, for of such things there need not be any disclosure. Therefore whether a ship be home or foreign built is a subject of inquiry for the insurer; (Long v. Duff, Same v. Bolton, 2 B. & P. 209,) so is her national character, (Elting v. Seaman, 2 Johns. Rep, 157,) and the lime of emigration of a naturalized citizen, he not being found to disclose it, though he emigrate flagrante bello. Duguet tr. Rhinelander, 2 Johns. Cas. 476.
      The general political relations of countries; probable political events; public affairs of general notoriety, and the assured’s opinions on known subjects, need not be communicated; (Carter v. Boehm, 3 Burr. 1905,) nor hia own conclusions on the facts he has disclosed. Bell v. Bell, 2 Camp. 475.
      It is unnecessary to declare the ordinary mode in which the voyage ia-sured is conducted, however new the trade may he; (Noble v. Kennoway, Doug. 494; Pelly v. Boy. Ex. Ass. Co., 1 Burr. 341; Vallence v. Dewar, Park, 606,) therefore the having on board papers which, though false, are customary, need not he disclosed; (Planche v. Fletcher, Doug. 238; Talcot v. Marine Ins. Co., 2 Johns. Rep. 130; Le Roy v. Un. Ins. Co., 7 Johns. Rep. 343,) nor instructions how the master is to prosecute the voyage; (id. ibid.) nor a letter referred to by a subsequent letter which is shown. Freeland v. Glaver, 7 East, 457.
      A further rule as to concealment and disclosure is, that what is impliedly warranted against need not-be mentioned, though if known it would enhance the risk and increase the premium ; because it is a peril at the door of the underwritten. Haywood v. Royers, 4 East, 540. Therefore, on a policy at and from a port of original departure, it is not necessary to state how long the vessel has been there; (Kemble v. Bowne, 1 Caines’ Rep. 15,) nor the necessity of repairs from injuries in a voyage preceding that insured. Beckwith v. Sidebotham, 1 Camp. 116; Schoolbred v. Nutt, Park, 300. But if an assured be asked anything, even on those points whereon he is not bound to communicate, he must speak the truth; (Haywood v. Royers, ubi sup.) and wilful ignorance of a fact relating to the subject of insurance, of which an assured, for fraudulent purposes, keeps himself unacquainted, is tantamount to concealment. Biays v. Union Ins. Co., 1 Cond. Marsh. 465, a. n. 70.
      Eor disclosure of particular interests see ante p. 13, at the close of note (a)

   Thompson, J.

delivered tbe opinion of tbe court. Tbe underwriter on a policy of insurance enters into contract, and computes tbe premium, in full confidence that tbe insured, being fully informed of all circumstances relating to tbe intended voyage, bas dealt fairly with bim, and bas kept back nothing which it might be material for bim to know. Every fact and circumstance, therefore, wbicb can possibly influence tbe mind of tbe insurer, in determining whether be will underwrite tbe policy, or at what premium, is material to be disclosed, and a concealment thereof will vitiate tbe policy. A concealment is to be considered, not with reference to tbe event, but to its effect at tbe time of making tbe contract. Tbe question, therefore, must always be, whether, under all tbe cbcumstances, there was at tbe time the policy was underwritten, a fair representation, or a concealment, either designed and fraudulent; or, though not designed, varying materially tbe object of tbe policy, and changing tbe risk understood to be run. If we test the facts found by tbe jury by tbe principles of law above laid down, it will, we think, be found, that tbe concealment was such as to vitiate tbe policy. Tbe information possessed by tbe assured was special and particular; that about eleven hours after tbe sailing of tbe vessel, a violent storm took place at Norfolk. Tbe communication made to tbe underwriter was very general and vague; that there bad been blowing weather and severe storms on tbe coast after tbe vessel sailed, but without any reference to tbe particular storm above mentioned. Unless tbe assured intended to suppress some information be bad relative to this weather, we can see no reason why be did not communicate tbe information be bad actually received. From tbe general communication given, tbe underwriter might be induced to calculate that tbe storm bad not reached Norfolk ; or that tbe vessel bad been out so long as not to be ^endangered by it. Tbe representation made to tbe underwriter was, that there had been blowing weather and severe storms. Tbe information possessed by the assured was, that there had been a violent storm. This being the language of the jury, shows that the representation was not made in quite as forcible terms as those in which the information was received by the assured. In addition to this, the jury have found explicitly, that the storm at Norfolk did increase the risk, and that no communication of the information received by the assured relative to this storm, was made to the underwriter. The increase of the risk being matter of fact, and having been thus found by the jury, must, we think, be conclusive. We are therefore of opinion that the defendant ought to have judgment.

Lewis, Ch. J.

I cannot concur in the opinion of the court. It is rather too much to say, the communication to the underwriter must be in the very express words in which the assured has received it. The information was such as to give the defendant reason to think the risk was increased. It comprehended, in my opinion, every thing that was necessary. It is sufficient, in cases like the present, that the insurer has a substantial communication.

Judgment for the defendant.


text:
    The President and Directors of the Manhattan Company against Miller.
    To a plea of a judgment recovered, a replication denying the fact, may conclude to the country. A plea merely negativing facta is not a special plea.

    This was an action on a promissory not in which the plaintiff had duly appeared by attorney, and the defendant pleaded a judgment recovered. To tbis the plaintiffs replied; but in their replication began, “And the said Pre sident and Directors of the “Manhattan Company say,” &c. without mentioning by attorney, and so went on negativing the whole plea, without having their replication signed by counsel, concluding to the country, and adding the sim-iliter, on which they went to trial and took an inquest.

      Woods, on an affidavit stating these facts, moved to set the inquest aside for irregularity.

      BogéH, contra.
    The replication is in the usual form. It is a mere negation of the plea, without alleging any new fact, and therefore not a special pleading. Besides, the name of a counsel is endorsed on the back.

       As to pleading of judgments, see Code of Procedure, § 161, (sec 138,) p. 66.

         See Sandford v. Rogers, 2 Wils. 113; 2 Tidd’s Prac. 673; s73 also Esplin v. Smallet, Say. 208.

      5) Therefore, to a plea of payment to the payee of a note before endorsement to the plaintiff, a general replication denying the payment is not a special plea, and does not require the signature of counsel. Pumpelly v. Crosby, 8 Johns. Rep. 322. But to double pleas a counsel’s hand is required. Satterlee v. Satterlee, ibid. 327.

   Per Curiam.

There was no occasion for a counsel’s hand; ^'unquestionably the plea is not special. If it was, there is the name of counsel endorsed. Besides, had it been so, it ought not to have been retained. Let the defendant take nothing by his motion, and pay the costs of resisting the application. ,

Motion denied with costs.

       The general rules are, that where a defendant cannot, without a departure, vary in his rejoinder from the matter set forth in his plea, or when the issue on the replication would be the same as that on the plea; or that on the rejoinder substantially the same as that on the plea; (Patcher v. Sprague,
        2 Johns. Rep. 462,) or where there is an affirmative on the one side, and a negative on the other, or where the replication denies the whole matter of fact, which constitutes the plea, or the plea puts in issue matter of fact, as well as matter of record, the conclusion of the plaintiff’s reply should be to the country. See the learned observations of Williams, Serjeant, in Hayman v. Gerrard, I Saund. 103 n. (1)

       As to present practice, see Code, § 150. The defendant must demur to the reply, if the reply is objectionable, or move to strike out, &c. See decisions, passim.