author: Kent, Ch. J. LiyiNGSTON, J.

text:
    Henshaw against The Marine Insurance Company.
    Where tho termini of the voyage insured are preserved, it is only a deviation to toueli at any intermediate port; and though it be resolved on before the voyage commence, it is not on that account an altered, or different voyage from tho one described in the policy, and the insurer will be liable for any loss before arriving at the dividing point. Wages and provisions are subjects of general average from the time of being obliged to bear away to a port of necessity in consequence of injuries received, and recoverable, under a policy on tho ship. If the points intended to be relied on in argument have not been subjoined to the case made, service of a copy of them on the judges and adverse party at the time of bringing on tho argument is sufficient.
    On a policy of insurance upon the body of the brig Friendship, “ at and from Newry, in Ireland, to New York.”
    Previously to the sailing of the vessel, the master, in conjunction with the agents of the assured, entered into a written contract to land some passengers at Halifax, in Nova Scotia, under a penalty of five hundred pounds. The vessel, however, cleared out at Newry for New York, but in proceeding down' the St. George’s or Irish channel, and before she bad readied the dividing point to turn off tc Halifax, she struck on a rock, in consequence of which it was, after consultation, deemed necessary to bear away for Dublin, in order to refit. For the expenses, it became indispensable to take up money on bottomry. After doing which, and completing ber repairs, the vessel sailed on her voyage by the way of Halifax, where she landed her passengers, and afterwards arrived safely at New York, the port of her ultimate destination.-
    A relicta having been given, a case was made, subject to the opinion of the court whether the plaintiff was entitled to recover the amount of the money taken up on bottomry, and whether the wages and provisions from the time of bearing away until she was in condition to proceed, and the expense of loading and reloading the cargo, and all others occasioned by that necessity, should, or should not, be a subject of general average?
    Hoffman, for the defendants,
    objected to the cause being brought on, because the points, on which the plaintiff meant to rety, were not added to the case served upon him.

      * Jones, contra,
    then tendered to him a statement of the points, and at the same time served the judges with copies. This he contended was sufficient.
    Hoffman, in reply.
    The rule ordering points to be subjoined to the cases made, was intended as much for the case of the opposite counsel as of the court.

      Per Curiam. It is sufficient to serve the points on the opposite party at the time when the case is delivered to the court, and when the motion is made to bring on the argument.

      Jones, for the plaintiff.
    Our first position is, that the voyage insured, and that on which the vessel sailed, are the same; therefore, as the loss took place before arriving at the dividing point of the two voyages, the insurer is liable. The contract to touch at Halifax, was no more than an intended deviation, and did not amount to a different voyage. It is not denied that a deviation avoids a policy, but then it is only as to subsequent, and not as to previous losses. For these last the underwriter continues chargeable. These principles are of long standing, and to be found well settled in the cases of Foster v. Wilmer, and Carter v. Royal Ex. Ass. Co., 2 Stra. 1249. In Murdoch v. Potts, (Sitt. at Gr. II. after Trin. 1795, before Lord Kenyon,) which may be relied on by the defendants, the decision turned on the fact of the ulterior voyage being concealed. And in Wooldridge v. Boydell, Doug. 16, Buller, J. recognizes the law as settled by the authorities referred to. In that case the voyage insured was never intended. The termini were not the same. This, according to Lord Mansfield, is the criterion to determine whether the voyage pursued be only a deviation, or a different voyage. When the termini are the same, any intermediate course is only a deviation. Kewhy v. Ryan, 2 H. Bl. 343, reviews all the former determinations, and confirms them. In Middlewood v. Blalces, 7 D. & E. 162, the decision went on the ground of a positive order, previous to the voyage, depriving the captain of a right to pursue it in the most advantageous manner. This was held to increase the risk by taking away the right, which the insurer had, to the master’s judgment and discretion. This very case, however, acknowledges all the others, and Lord Kenyon says, he would not have determined as he did, could he have been brought to suppose the decision in Kewhy v. Ryan would be at all affected. The question as to general average has already been determined by the decision in Walden v. Le Roy, as against owners of goods, and it'is conceived that *the same principles must govern against underwriters on a vessel.
    Hoffman, contra.
    The determination in Kewhy v. Ryan was evidently contrary to Lord Kenyon’s opinion, as expressed in the subsequent case of Middhwood v. Blokes. He does, indeed, avail himself of a distinction, but which amounts to nothing. This, therefore, shows that the law is not settled even in England; we may then be allowed to investigate this point on principle. If so, the English adjudications cannot be supported. Millar, when speaking of the reasons on which insurance law should proceed, is deserving of the highest consideration. In page 392, he says, “ to vary in the smallest particular from the original plan of the voyage, constitutes an alteration.” The reasoning in this: a deviation arises after the voyage is begun; an alteration when the original plan is previously departed from. In 431, Millar puts this question: “ Suppose the assured owners have taken on board a consignment to a different port than that specified in the policy; will it free the underwriter?” He thinks it ought, because it is “a variation in the plan of the adventure adopted previous to the commencement of the risk.” He argues that an intention to alter the voyage destroys the contract. The agreement by the policy is to pursue the voyage in the most direct course. When it is to be prosecuted in another, it takes away the option of the captain and comes within the distinction, refined as it is,, of Middhwood v. Blalces. The distinction, however, is purely fanciful; for, a voyage from Newry to Halifax, and from Halifax to New York, can never be the same voyage as one from Newry to New York. It is incongruous to say that wages and provisions are subjects of general average, when the owner is bound to have his vessel in such a situation as to carry her loading, and his compensation is in his freight.
    Jones, in reply.
    The policy here is at and from. The risk, therefore, was commenced. Allowing, then, the distinction taken as to previous and subsequent alterations, we are still entitled to recover within the words of the policy.

         In every ease the party who is to open the argument must deliver to the court and to the opposite counsel the points he means to rely or Main v. Newson, 3 Johns. Rep. 542.

   Kent, Ch. J.

delivered the opinion of tne court. The court are of opinion that the previous intention to touch at Halifax did not make it a different voyage, as the termini, as well as the substantial object of the voyage described in the policy, and of the voyage upon which the vessel sailed, were the same. This point is considered as settled in the English law, by the cases of *Carter v. Royal Ex. Ass. Co., 2 Stra. 1249; Thellusson v. Ferguson, Doug. 346, (361 of 3d ed.;) Kewley v. Ryan, 2 H. Bl. 343, and Middlewood v. Blakes, 7 D. &. E. 162. The same question arose in this court in the case of Silva v. Low, decided in October term, 1799. The voyage there, as described in the policy, was from Wilmington, in North Carolina, to Falmouth; but, previous to sailing, the captain declared his intention to touch at New York for seamen ; and one question in the cause (which was twice argued) was, whether the sailing under that declared intent was a distinct voyage ? All the above cases were reviewed and considered, and upon that question the majority of the court were of opinion that it was to be deemed still the same voyage. The second point was decided this very term in the case of Walden v. Le Roy. The only difference in the two cases is, that this is an insurance on the ship, and that was an insurance on the cargo. But this makes no difference in the application of the rule for contribution. The opinion of the court accordingly is, that the plaintiff is entitled to recover, and that the wages and provisions of the crew during the necessary detention, at Dublin, to repair, go into a general average.

LiyiNGSTON, J.

As to the first point, whether this were anything more than an intended deviation, I concur in tha opinion just delivered. Both in England and in this coum try it is well settled that an intention, however strong or well ascertained, to touch at an intermediate port, not mentioned in the pohcy, does not constitute a different voyage, but only an intention to deviate. Were this res integra, doubts might reasonably be entertained ; but it is no reason for shaking tbe authority of several adjudged eases, merely because a better rule might possibly have been adopted. Underwriters, at any rate, cannot complain of a rule which is evidently calculated to diminish their risk, for the moment the separating point is past, which may be at a very small distance from the port of departure, the whole premium is earned, and there is an end of all further peril. But, without further speculation, it is enough to say, that it has been ajdudged more than once, that where the termini of a voyage are the same, an intention to touch at some other place, out of its usual course, does not constitute a deviation or a different voyage.

In the case of Foster v. Wilmer, (2 Str. 1249,) Lord Chief Justice Lee held, that taking in salt to deliver at Falmouth, a port not mentioned in the policy, before the vessel went to Bristol, to which *place she was insured, was only an intention to deviate. So, where the captain had taken a consignment of goods to Amsterdam, and the insurance was from Honduras to London, the underwriters were held liable for a loss before the vessel had ' reached the dividing point. It is true these are decisions at nisi prius, but they have been long practised op, ana have received the sanction of the whole court of common pleas in England, in the case of Kewley v. Ryan and yet this is one of the cases to which .Marshall refers, to induce a belief that the law is different. A vessel insured from Grenada to Liverpool, had sailed for the latter place, but was to touch, as appeared by her clearances, at Cork in her way thither. The whole court, after argument and advising, determined that “ where the termini of the intended voyage were the same, it was to be considered as the same voyage.” Nor is the case of Middlewood v. Blakes, (7 D. & E. 162,) which happened three years after, at all opposed to the one last cited. All the judges, on the contrary, recognize the law as there settled; and Lord Kenyon declares, that he would abandon the opinion. he had given at the trial, if he thought it tended to shake that decision. The whole court, how correctly is an immaterial inquiry at present, determined against the assured, because his captain was positively instructed to take one of three courses, instead of being left at liberty to exercise his judgment, when he canae to the dividing point.

But, were the law doubtful in England, the case of Silva v. Low, (1 Lex Mer. Amer. 324,) decided in this court, would be conclusive. That was a voyage from Wilmington to Falmouth. The captain, previons to sailing, had expressed a determination to touch at Sandy Hook, to obtain seamen from New York. Three of the j udges thought that where the termini of the voyage were the same, the sailing with an intention to touch at a place not in the direct course, was not a deviation, but one and the same, and not a different voyage.

Whether the wages and provisions from the time of bearing away until the brig were in condition to proceed, and the expense of unloading and reloading the cargo, and all others occasioned by that necessity, are to be borne as a general average, is also made a question in this cause ?

From tbe opinion delivered on this point, I dissent. In tbe ease of Walden v. Le Roy, decided this term, my reasons were assigned at large, why an owner or underwriter of goods, ought not to contribute towords a reimbursement of '^expenses of this nature. For the . same reasons, underwriters on vessels can have nothing to do with extra wages and provisions. So it has been settled in England, and the practice both there and in this country is in conformity thereto. As these expenses ■occasion a diminution of freight only, that subject alone must be considered as loser, and its underwriter, if there be any, called on for an indemnity. An insurer of a vessel might as well be applied to for a contribution towards a loss occasioned by an extra consumption of provisions, 'or an extra charge for wages during violent storms or contrary “winds, which had protracted the voyage three or four months beyond the usual period.

We now go much further than in Walden v. Le Roy. We there only said, that wages and provisions expended during a detention to refit, after a storm; should be brought into a general average. But here we determine that “ all other expenses occasioned by this necessity,” are to become a general average including (for the expression is sufficiently broad) materials for repairs, as well as for the hire of carpenters and laborers. An owner of goods will, therefore in future, be bound not only to pay and feed the mariners, but if every expense occasioned by a storm must be paid as a general average, and so we are now determining, he will have to purchase materials and find workmen to repair a ship in which he has no interest. This, if it be intended to go thus far, is introducing an entire new principle into the law merchant, which will be mischievous and unequal in its effects, and which no advocate for the doctrine of general average, excepting Bicard alone, has ever before maintained. Gertain it is, that no owner or underwriter of goods, with us, has-ever yet paid towards the repairs of a vessel injured by storm, but hereafter this as well as every other expense (for there is no exception in this case of anything) must be borne by him in proportion to his interest on board. This innovation in practice, however beneficial to the owners of ships, will not be much relished by the great body of merchants, who, besides paying large sums, for which they have hitherto not deemed themselves liable for real and necessary reparations, will be exposed to many frauds, on the part of those who will now have a right and an interest to repair their vessels at the expense of others.

My opinion is, that the plaintiff is not entitled to recover the wages and provisions of the crew, from the time of bearing *away until the vessel was repaired and in a condition to pursue her voyage, and that none of the expenses occasioned by that necessity are to be borne as a general average.

Upon these principles judgment should be entered only for the sum of 650 dollars ; but the opinion of the courtis, that the verdict is right, and the plaintiff must have judg ment accordingly.

Judgment for the plaintiff according to the verdict.

       S. P. Marine Ins. Co. v. Tucker, 3 Cranch’s Rep. 351. Therefore, where ail insurance is to several ports of destination, and it appear that the vessel sailed with an intention of going only to that lastly named, it is a sailing on the voyage insured. Marsden v. Reid, 3 East, 512. But where a vessel is insured from one port to another, and sails for an intermediate port, in prosecuting the voyage from whence for the port insured to she is taken, tho voyage insured is deemed never to have commenced. Way v. Modigliani, 2 D. & E. 30; Wooldridge v. Boydeil, Doug. 16. So where an insurance is from several ports of departure, to a particular port of destination, and the vessel sail from one of the ports of departure to another, the policy never attaches. Sellar v. M‘Vicar, 1 N. Rep. 23. A clearance for a different port than that to which insured is not proof that the vessel did not sail on the voyage for which underwritten. Talcott v. Mar. Ins. Co., 2 Johns. Rep. 130. But where all the papers show a different voyage than that insured to, and there be not any evidence of sailing on that mentioned in tho policy, though the vessel be taken on tho iter to be pursued in prosecuting both voyages and before she reaches the dividing point, it is not a sailing on the voyage in tlie policy. Wooldridge v. Boydell, ubi sup. See Dennis Willams v. Ludlow, ante, 111.


source: Caselaw Access Project

author: Kent, Ch. J. LIVINGSTON, J. ^Thompson, J.

license: Public Domain

text:
    The United Insurance Company of New York against Robinson and Hartshorne. Affirmed in error, 3 Johns. Rep. 592.
    After an abandonment and payment of loss, a purchase of the property insured, by the agent or correspondent of the underwritten, though made after condemnation, is for the benefit of the insurer, if he elect; therefore the proceeds of a purchase so made, and any cargo in which they may be invested, become, if he pleases, his property, and he may maintain trover for it, against the assured.
    Trover to recover the value of a quantity of wine and brandy, in which a verdict was taken for the plaintiffs subject to the opinion of the court on this case.

      The plaintiffs underwrote 10,00 dollars on two policies of insurance, on goods shipped by the defendants, to Cadiz, St. Lucar, or Malaga, consigned, conditionally, to the master, with directions, in case of accident, to enclose bills oí lading to the house of O’Connor, in Cadiz, or St. Lucar, and to that of Grrevigne & Co. in Malaga, to b„e accompanied with instructions to follow the orders given by the defendants to their master. Off Cadiz the vessel, being warned not to enter that port, bore away for Malaga, in sight of which she was captured by a French privateer, carried, in and there condemned by the French consulate, as good and lawful prize. During the proceedings in the consular court, the captors had neglected to pump the ship, and it was apprehended, from her leaky situation, that the cargo, consisting of sugar and cocoa, had received some injury. Without opening the hatches to ascertain its extent, the house of Grrevigne & Co. at the request of the captain, who did not know of the insurance, purchased the cargo for 15,56.5 dollars, through the intervention of a sworn broker for the benefit and on the account of the “ defendants, and whomsover else it might concern." But in this transaction Henry Glrevigne deposed, his firm considered themselves as acting in the capacity of agents for the defendants, to whom they would have had recourse for payment of any loss that might have accrued on the purchase. This, however, did not take place; for the cargo sold for 80,174 dollars, which sum, after deducting the 15,565 dollars *paid to the captors, Glrevigne & Co. invested in wine and brandy, which they shipped on account and risk of the defendants, who received and sold the articles thus remitted, contending they had a right to retain the amount, notwithstanding they had, on advice of the capture, made an abandonment to the plaintiffs, who accepted of it, and paid the full amount of their insurance as for a total loss. The question submitted to the court was, whether the plaintiffs were entitled to recover? Either party to be at liberty to turn tbe facts stated into a special verdict.

      Biggs, for tbe plaintiffs.
    Tbe transaction in Malaga, though done for tbe benefit of tbe defendants, must enure to that of tbe plaintiffs; for tbe purchase can be considered in no other light than as in trust for the persons who, in judgment of law, might be deemed the.owners. These the plaintiffs became by their accepting the abandonment and paying the total loss. The adverse party cannot say Grevigne & Co. acted as agents for them, after having, in due form of law, passed the property to the plaintiffs. If the property, then, was theirs, any articles purchased with the proceeds of that property were theirs also. There are cases in which a purchase by the insured may be considered as a partial loss. In McMasters v. Shoolbred, Esp. N. P. 237, it was held that, as the assured did not abandon until after a recovery of the vessel, the sum at which she was purchased by the captain constituted only a partial loss. But that a purchase by an assured does not stand.in the way of the underwritten, to recover for a total loss, has been recognized in this court. In the present case, the cession of the property by the defendant, its receipt by the plaintiffs, and payment to the defendant, as for a total loss, according to his claim, vested the interest in the company. Eor it is a settled principle, that an abandonment made and accepted' transfers the property. Allowing no just cause of abandonment did exist, yet if accepted and paid for, it is conclusive. The present question is not whether we could have been compelled to accept the abandonment, but whether, as we have paid the amount of our subscription, we are not purchasers of the subject insured ? If so,* then we are entitled to the benefit. of the property invested and sent here. 2 Marsh. 522, 523. Randall v. Cochran, 1 Ves. 98 are authorities for our claim.

      Hoffman, contra.
    By tbe case of Saidler and Craig v. Church (see tbe case, vol. 1, 297, n.) it was thought the as sured could make no purchase but for himself. That principle was somewhat qualified by Abbott v. Broome See the case, vol. 1,292. *The question again presents-itself, whether the assured cannot, under peculiar circumstances, purchase for the benefit of himself, without any reference to the underwriter. It will be observed that the transaction between the assurer and assured was closed; and that the defendants stood as mere strangers purchasing on their own credit. It was not on that of the cargo purchased, for Henry Grrevigne expressly says that his house would, on any deficiency, have had recourse to the defendants. The plaintiffs would not have been liable. How, then, can they set up a claim to any of the returns 'i Suppose the whole had sunk at sea, the defendants must have sustained the loss. So, had the purchase proved a losing bargain, the underwriters would never have been called' on But as the event turns out profitable, though the buying of the cargo was a matter of mere speculation, the plaintiffs set up a right to demand the emolument. This, however, they cannot maintain, unless they can show their liability to us for any sum that we might have paid Grrevigne & Co. The rule, to operate, must be equal. It is to be observed too, that the purchase was not by the captain, the mutual agent of the insurer and insured. It was by a correspondent of the defendants, and this distinguishes the present from any other of the cases on this question. But allowing the plaintiffs entitled to recover, it is not the value of the articles here, but that at which they would have sold in Malaga. Park, 164. Therefore we certainly are not to account for any profits on the cargo which may have been made here.

      Biggs and Harison, in reply.
    By accepting the return cargo the defendants have adopted the acts of the captain, who, from the intimate relation between assurer and assured is the agent of both parties. In case of accident he becomes, though without privity, the agent of the assurer. Whatever is done by him in good faith, is obligatory on the un derwriter, though the master have no knowledge of the insurance. Thus, a composition entered into for salvage, to avoid the expense of libelling, binds the insurer. So does a ransom paid ; and, should the goods or ship arrive after payment of the loss, the underwriter must bear whatever may further ensue from the property being inadequate to pay the charge upon it. By the conduct of the assured, the plaintiffs are shut out from applying to a foreign tribunal for restitution, and shall they lose the right to ask for their property, and then be refused the proceeds of their own ? Besides, we hold, that had the purchase turned *out a losing bargain, we should have been bound by this boña fide act of the captain. We, therefore, claim the benefits of what he has done.

       It was there held the assured could not abandon, as there had been a parchase bv his captain. Park, 161.

   Kent, Ch. J.

delivered the opinion of the court. This is a clear case for the plaintiffs. Their claim is founded on sound principles in the law of insurance. The defendants abandon, and the plaintiffs accept and pay. They were then substituted for the defendants, and succeeded to the benefit of the acts of the agent abroad, in relation to the property in question. The master and merchants at Mala-ga acted, nominally, as agents for the defendants, but, in reality, they were agents for the party having the ultimate claim to the property. What they did was, undoubtedly, founded on previous instructions from the defendants, and on the connexion that the defendants had with the property, as former proprietors, and existing claimants. When the defendants abandoned the ship and cargo, and received their indemnity from the plaintiffs, they renounced all concern in the interference of their agents, and transferred to the insurer the result of that interference. This is settled doctrine in respect to abandonment. The present case is analogous to that of capture and subsequent ransom, where, upon an accepted abandonment, the whole benefit of the composition, and the effects reclaimed, go to the insurer.

There is no ground for considering the purchase by the house of Grrevigne & Co. as made for the defendants, in the character of strangers to the property. It was' made for the defendants as having an interest in it, and with intent to mitigate the loss. The law of abandonment applies to such a case with the greatest justice and good policy in making the previous instructions, and all acts of the agent enure to the insurer. To give to the insured a full indemnity on his policy, and also the advantages of these efforts of the agents to repair the loss, would be doubly injurious to the insurer. It would deprive him of the benefit of his substitution, tend to slacken the exertions of agents to recover the property, and invite them to resort to fraudulent speculations upon the loss. It cannot be admitted, that the condemnation at Malaga put an end to the interest of the insured, so as to render a purchase, ’by him, thereafter, equivalent to a purchase by a stranger. In the case of M’Masters v. Shoolbred, 1 Esp. Rep. 237, the vessel was condemned by the French consul, sold by him as a prize, and the captain purchased her at such sale on account of the owners. But it was considered as so much property recovered *by the assured, and it was likened, by Lord Kenyon, to the case of ransoms. The condemnation, and change thereby of the legal title, wafe not considered as .any impediment to the doctrine that the assured, by a recovery in that mode, had sustained only an average loss. That case differs from this in one particular only; that here was an abandonment and payment of a total loss. It was admitted in the case I have cited, that if the insured, upon the capture, had abandoned he might have recovered a total loss. But then upon the very principles of abandonment, (and which that case did not mean to question,} the property so recovered, to use Lord Kenyon’s expression, must have enured to the benefit of the insurer. It is a principle perfectly well settled, that abandonment has a retrospective effect, so as to make the insurer to be regarded as the proprietor ab initio. The insurer is put in the place of the insured, and the latter is considered as if he had not existed, according to the language of some of the books. Putting out of view, as the case in Espinasse certainly does, any material operation from the fact of condemnation, I cannot see any difficulty in the question. Suppose there had not been a condemnation, but the insured had, by their agent, purchased, or recovered the property, immediately upon the capture, and before this technical change of title by condemnation, I apprehend there would, in that case, be no question but that the assured, when he abandons, parts also with the benefit of his repurchase. The consequences would,'otherwise, be most unjust towards the insurer, and the insured would turn his contract from one of indemnity into one of gain. If the condemnation in this case creates no difficulty, no other exists. The insurer was not bound, unless he pleased, to accept of the purchase at Malaga; nor was the insured. The agent purchased at his peril. There can be no risk, therefore, that this doctrine will involve insurers in hazardous mercantile concerns. They have nothing to do with them, but at their election. After an accepted abandonment, they can, if they please, accept of the repurchase by the agent, and affirm his acts, or they may leave them to fall upon the agent. The French ordinance of marine has made provision for this very case of repurchase after capture, and it ordains that the insurers may take the composition for their own benefit, or they may, at their election, refuse to have anything to do with the repurchase, and content themselves with paying a total loss. So also, on the other hand, the assured may refuse to ratify *the repurchase, and for this reason, says Valin, it behoves the agent to act with great circumspection and prudence. Ord. Art. 66 and 67; 2 Val. 159, 160. See also 1 Emer. 464, and s. 21. 1 agree that tbe insurer is always bound to decide promptly, wbetber or no be claims tbe benefits of the repurchase; but as that point is not drawn in ques tion in tbe present case, I intend that no objection exists on that ground. Tbe repurchases, authorized by tbe French law, are as applicable to cases where tbe vessel has been condemned as where she has not. For by tbe law of nations, as understood when these ordinances were established, a capture and carrying into port, or infra proesidia, so as to take away from tbe captured the hope of recovery, as effectually changed the property as a sense of condemnation will do at this day.

In the case of Gross v. Withers, 2 Burr. 694, the doctrine of capture underwent a very learned investigation; and Lord Mansfield, in giving the opinion of the court, observed, that if after condemnation the owner recovers, or takes his captured ship, the insurer can be in no other condition that if she had been recovered or taken before condemnation. The reason is plain from the nature of the contract. The insurer runs the risk of the insured, and undertakes to indemnify. He must, therefore, bear the loss actually sustained, and can be liable to no more. So that, if after condemnation, the owner recovers the ship in her complete condition, but has paid salvage, or been at any expense in getting her back, the insurer must bear the loss so actually sustained. He observes, in another place, that no capture by an enemy, though condemned, can be so total a loss as to leave no possibility of recovery. Page 696.

I agree, that after a condemnation, the property is changed, so that a complete title can be transferred from the captor to a third person. But this rule does not apply between insurer and insured, so as to authorize the insured to be that purchaser, at the very time of the loss, and with the express view of indemnifying himself against a part of it. If he does, - and still claims a total loss from the insurer be must tender to bim tbe benefit of that purchase. Tbis rule is founded on tbe clearest justice, and is essential to prevent fraud. As long as tbe property remains in tbe bands of tbe captor, although a condemnation has taken place, there is still tbe possibility of a recovery. There still exists, as a rod over tbe captor, the right of appeal; and tbis, and other circumstances *which may be peculiar to tbe case, will always induce tbe chance of a favorable composition and purchase, on tbe part of tbe claimant. That chance is valuable, and ought, on abandonment, to go to tbe insurer. In tbe present case, however, tbe assured takes bis total loss from tbe underwriter, makes bis favorable terms with the captor, and insists on retaining both. This is not to be permitted, and I cannot pursuade myself that it ever was permitted by tbe insurance law of any country.

Tbe case of Saidler and Craig v. Church, decided in tbis court, in July term, 1799, is an authority in point, and must govern tbe present case. That was an insurance on a vessel, which was captured, condemned, and afterwards purchased by tbe master, on account of tbe owners, of whom be was one. As soon as tbe capture was known, and before tbe condemnation and purchase, tbe insured abandoned, but after tbe purchase, tbe owners fitted out the vessel, and sent her on another voyage. Tbe court held that tbe assured, by affirming tbe purchase of tbe captain, as their agent, bad waived tbe abandonment, and turned the total into an average loss. That if tbe insured bad intended to pursue their claim to a total loss, „hey ought not to have ratified tbe act of their captain, but left tbe insurer to reap, at bis election, tbe benefit of that purchase. Tbis case cannot be separated from the present one by any solid distinction; and I should be sorry to question, in any degree, the authority of that decision. The case of Abbott v. Broome, 1 Caines’ Rep. 292, was not intended, in any respect, to shake tbe force of it. I,took no part in tbe latter decision; but it appears, from tbe re* port of tbe case, tbat it was clearly to be distinguished, from tbat of Saidler and Craig v. Church (Vide, vol. 1, 803,) and tbe latter appears to have been uniformly considered by tbe counsel and court as a valid authority. I conclude, therefore, botb from authority and principle, tbat tbe plaintiffs are entitled to recover.

LIVINGSTON, J.

Tbe more I reflect on tbe nature o* this claim, tbe more extraordinary, not to say extravagant, it appears. I am at a loss to discover any ground on which it can be supported. Those relied on are, tbat tbe purchase of tbe cargo being in trust for its ultimate owners, tbe plaintiffs must be exclusively entitled to the profits, inasmuch as by tbe abandonment, and payment of a total loss, they became proprietors thereof. These arguments proceed on tbe *hy|)otbesis, tbat goods, even after condemnation, belong to the original proprietors, or, in case of abandonment, to tbe assurer, and tbat tbe assured and his factors continue, after such an event, his agents, and are authorized to purchase for him tbe whole, or any part of tbe property condemned. But neither of these positions will be found correct. After condemnation there is an end of tbe interest both of tbe owner and underwriter in tbe property confiscated, except so far as regards the right of appeal; and even in case of reversal of tbe sentence, neither party would receive the property in kind, but its appraised value, or tbe price at which -it had been fairly sold. Tiras, if an appeal had been successfully prosecuted here, the underwriters, in virtue of the abandonment, wQuld have been, entitled, at most, to the sum at which the captor sold the property, admitting the sale to have been fair, and could not by action of trover, or otherwise, pursue the property itself, the title to which had been thus changed by condemnation. The moment sentence is pronounced, the right of the captors to sell is complete, and to such a sale all the world are, or may be, parties. The assurer may buy if he please; so may the original proprietor, or any stranger. He who does so, does it at his own peril; and as tbe owner, in case be purchase, cannot throw the loss, if any, on the underwriter, so neither can the latter come in for the profits resulting from the bargain, unless, indeed, the assured continue, as is alleged, agent of the assurer. But whence is this authority derived ? Is it from the policy ? That confers a power only to sue labor, and travel, in case of misfortune, for the defence, safeguard, and recovery of the goods insured, without prejudice to the insurance.”

From these terms it is evident the authority of the assured and his factors contends only to cases in which, by their exertions, the property may, be rescued from an impending peril. That is, they may use all diligence, and incur any expense, on the underwriter’s account, to prevent a condemnation. But never before was it urged that he, or his consignees, had a right to purchase property for the account and risk of the underwriter.- Mischievous, indeed, would such an unlimited authority prove to the underwriters themselves. They would become merchants as well as underwriters, and be exposed to all the hazards to which the indiscretion or avarice of foreign agents, chosen by others, might expose them. They would never know when their liability on a policy ceased. * After paying their whole subscription, as they have done here, they might be called on for a second loss, greater, possibly, than the first, occasioned by an imprudent speculation abroad, which they themselves, if on the spot, would not have made. What has been done in this case, shows the hazards to which ^hey would be exposed, if the power of the assured or his agents be as great as has been asserted. Messrs. Grrevinge & Co. first purchase the cargo, and that before its condition is known; they then sell it, and after reimbursing themselves, invest the balance in brandy and wine, for account of the defendants, to whom they are accordingly shipped. These brandies and wines are sold by the defendants in New York, and because a profit has accrued, the plaintiffs very modestly claim it. But let tbe case be reversed. If there bad been a loss, which might well have happened, in a transaction somewhat complicated, would the underwriters have been willing to make it good ? If the Apollo’s cargo, as was supposed, had been greatly damaged, if the markets had fallen at Malaga, and a great loss had ensued in that way, or by bad debts; if the Apollo had been shipwrecked on her return to the United States, and a second total loss had thus taken place, or if the brandy and wine had come to a bad market here, how would the plaintiffs, in either of these cases, have been astonished to be called on to make good the injury I They would have said, and there would have been no answering them, “ Show us the authority under which you have been trading on our account. You have been speculating for your own ' benefit, and at your own risk, and are now for shifting the loss on us.” If the defendants could not have compelled the plaintiffs to bear them harmless, and that they could not with me admits no doubt, there must be an end to this question. It cannot be endured, nor did the plaintiffs’ counsel pretend, that underwriters, under circumstances of this kind, might silently wait until a close of the adventure, and then announce their election whether it should be on their account or not. It would be unjust, in the extreme, to let them participate in, nay, take the whole of the gains, without furnishing any portion of the capital, and yet exonerate them from all loss. Qui sentit commodum, sentiré debet et onus, but here the underwriters would reap all the advantage, leaving the assured to bear the whole burden, and to submit to a loss without even a chance of benefit to themselves. If it be insisted that the *plaintiffs must have made good a loss on this adventure, and such was the position of their counsel, why are we not told under what form of action this responsibility can be enforced, or on what clause in the policy, or on what other undertaking, on their part, it can be supported? The truth is, it is the first time a pretension of this kind has ever been advanced, and the plaintiffs themselves, although there be a profit here, will soon be convinced it is their interest to abandon similar claims in future. Whatever they may think, it will not be long before they will find themselves losers, if we give our sanction to the principle on which alone they can succeed. Numerous will be the claims made on them for bad speculations of this kind, while those which prove profitable will be carefully con cealed from their view. Nothing is more common than sales for the benefit of parties ultimately concerned. This arises from the uncertainty which often exists, at the time of sale, as to the real owner. But seldom, if ever, have we before heard of a purchase on account of an uncertain vendee. A purchase is always made for the party whose money is employed. If so, what difficulty can remain as to the persons entitled to the profits in this instance ? Did the plaintiffs supply funds? Not a cent. Would they have paid a bill drawn by Grevinge & Oo. for the amount of the purchase ? They would have regarded such a measure as an unwarrantable liberty in those gentlemen, and without ceremony have dishonored their draft.

But this demand, it is said, is not without precedent, and we are referred to a decision in England, and to another of our own, as authorities in point. The case of M‘Masters v. Shoolbred, 1 Esp. Rep. 236, decided by Lord Kenyon at nisi prius, resembles in nothing the one now under consideration. It was an action on a policy on a ship which had been captured and purchased by the master, after eon demnation, for the owners. As no abandonment had been made while the vessel was in the hands of the captors, and the loss continued total, Lord Kenyon considered the owners entitled to recover only the sum paid to the captors, with certain repairs that had been rendered necessary by the capture. The ship having come to the owners’ possession, before an abandonment, or a suit brought, he considered it as immaterial how this restoration took place, and regarded the price paid as the quantum of the loss occasioned by the peril insured against. So, says he, if a ship be sunk and weighed up again, and thus restored to the owners, they have *only a right to go for an average loss. It deserves notice, that even in this case his lordship, and the counsel, admitted “ that the insured might have abandoned and thus made the loss total.” It inevitably follows that the underwriters, if an abandonment had taken place, would have nothing to do with the purchase. If the defendants here were suing on the policy, and had made no abandonment in season, they would probably have recovered nothing more than the sum which they paid for the cargo; but having abondoned, they would, under this very opinion of Lord Kenyon, be mtitled to claim as for a total loss, notwithstanding the-purchase in Malaga. This decision, therefore, though cited by the plaintiffs, is an authority directly against them. They have been equally unfortunate in their allusion to the case of Saidler & Craig v. Church, in this court. That action was also on the p>olicy, and whether the loss were total, or partial, was the only question. The vessel insured, having been captured, libelled in the admiralty, and condemned, was purchased by the master for the owners, who had fitted her out, and sent her on another voyage. The owners, on advice of the capture, but without knowledge of the condemnation or the purchase, abandoned to the underwriters. The court gave judgment as for a partial loss only, considering the sum paid by Saidler & Craig as the amount thereof. Although this was going further than was done in the case of M‘Masters v. Shoolbred, where there was no abandonment, it will not help the plaintiffs, for in neither of these instances were the vessels, when repurchased, regarded as belonging to the underwriters, but, on the contrary, to the assured, and because they had been restored to them at a-certain price, the sum thus paid was considered as the injury sustained by the disaster, by a reimbursement whereof a complete indemnity would be obtained. If these vessels had belonged to the assurers, as it is pretended these goods did, they might have paid as for a total loss in the firgt instance, and then sold, or fitted them out themselves, or called on the plaintiffs for what they might have earned. But if this last decision be at all favorable to the present claim, it is greatly shaken, if not entirely overturned, by that of Abbott v. Broome, Vol. 1, p. 292. Being of counsel in both these causes, no opinion was given by me in either. The judgment last rendered, however, as it respects the effect of a purchase by the assured, is more consonant to the law of insurance than the principle adopted in the former. It has *ever appeared to me that with a purchase after abandonment and condemnation the underwriter has nothing to do; and that it is better for him it should be so, and I should have thought that since the case of Abbott v. Broome, such would necessarily have been our judgment were the question again to occur; for most certainly the facts there disclosed were much stronger against the assured’s pretentions to a total loss, than those which appeared in the other, and yet they were determined to be well founded. Saidler & Graig did not purchase until after a capture and condemnation, to neither of which were they, in any degree, accessory; but the survey and condemnation, in the other instance, were produced on the application, and in a great measure at the request, of the supercargo; who was a part owner. In the first ease to practice a fraud was impossible ; and yet nothing is more easy, or more common, than to procure partial surveys and fraudulent condemnations, in foreign ports, when an assured wishes to break up a voyage at the expense of an underwriter. If, then, the case of Saidler & Craig v. Church be considered as no authority since that of Abbott v. Broome, which would have been my opinion, the plaintiffs are not only without the semblance of a precedent of our own to justify their demand, but as far as there is any analogy between the present case and that of Abbott v. Broome, the determination of this court is against them.

It was said, on the argument, that if the assured ransom, the underwriter is bound by his act, and must pay, whether it be a good or bad bargain. This is true, for such act being within his authority, he may, to avoid the greater evil of condemnation, or entire loss, pay a fair price for a restoration of the property, which then belongs to himself and not to the underwriter, who is only held to make good the loss occasioned by the capture, which is the sum paid as a ransom. The effect of a ransom is not to change the property, but to settle the extent of the loss. Upon the whole, I am of opinion, that after a capture, a condemna tion, an abandonment, and payment as for a total loss, the asssurer cannot call on the merchant to account for the profits which he may have made, in consequence of his agent’s purchasing, with Ms funds, the cargo of the captors subsequent to a condemnation; but that such purchase, being with the money of the assured, must be at his risk, and for his exclusive benefit, and that the defendants must of course have judgment. 1 Caines’ Rep. 303, n.(a)

^Thompson, J.

not having heard the argument, gave no opinion.

Judgment for the plaintiffs.


author: Per Curiam.

text:
    Akerley against Haines.
    In trespass quaire clausum, by a father, for debauching and getting his daughter with child, per quod, &c., the grounds of the action are the loss of service, and expenses of lying in: it is therefore no defence to show ths daughter to be unchaste, unless the father has connived at her criminal intercourse.
    This was an action of trespass for debauching and getting with child, Elizabeth, the daughter and servant of the plaintiff, by which he lost her service, was forced to expend a large sum of money in her lying in, and had, with all his family, fallen into disrepute.
    In support of the action the daughter herself, against whose admissibility no objection was made, testified to the facts, after which the counsel for her father acknowledged that the money recovered in this suit was intended for her benefit, and there rested his case.
    Against it the defendant attempted to prove that the daughter was a woman of unchaste character; but the credibility of the witnesses to this point was opposed by counter evidence on the part of the plaintiff. The counsel, however, against him, insisted that if the daughter was of bad reputation, antecedently to the defendant’s connexion with her, the present action could not be maintained. The judge, before whom the cause was tried, thought otherwise, and charged the jury, that though they might believe in the previous want of chastity, they ought, nevertheless, to find a verdict for the plaintiff, but assess damages only for the loss of service and expense of lying in, and nothing for the loss of reputation. He could not, he said, see why a man who had the misfortune of having an unchaste child, should not be recompensed for an injury of this kind. He suffered as much by the loss of her service, and paid as much for her confinement, on her lying in, as if she had Deen virtuous and of fair character.
    The jury, upon this, found in favor of the plaintiff two hundred dollars. Application was now made to set aside the verdict, for the misdirection of the judge, and as being contrary to evidence.

      Mnott, for the defendant.
    The verdict is, evidently, not founded on the evidence. The action is trespass quare clausum, and it ought to have been shown that it was committed within the house. The testimony proved a former unchastity; and as the plaintiff waived damages, on his own account, it ^became a question purely between the daughter and the defendant. Under this point of view, there can be no hesitation in saying the damages were excessive.

      Caines, contra,
    was stopped by the court.
   Per Curiam.

The direction of the judge was right. The daughter not being virtuous is no reason why her father, unless he connived at, and knew of her criminal intercourse, should not recover for the injury done to him, by the loss of her service and the expenses of her confinement. These are the grounds of this action. On the other point, which is made, that the verdict is against evidence, we can form no opinion. The case is so drawn as not to disclose either the number, character, „or particular testimony of the witnesses.

The jury, therefore, for aught we can know, were right in disbelieving the witnesses examined by the defendant, as to the daughter’s character. If so, the damages are not too high. Let nothing be taken by the motion.

New trial refused.

       See Seagar v. Sligerland, ante, 220, n.(a.)


author: Livingston, J. Spencer, J.

text:
    Casey and Lawrence, assignees of Nixon, a bankrupt, against J. Brush, surviving partner of S. L. Brush, deceased.

      Assumpsit cannot be maintained by one partner against another, for a balance due on a joint transaction, unless evidence be given of an express promise.
    Assumpsit by the plaintiffs, as assignees of Nixon, a bankrupt, for a balance of an account, due on a particular partnership, in which the bankrupt, the defendant, and Samuel L. Brush were concerned.
    The declaration contained a count for goods sold and delivered, the usual money counts, and an insimul com/pu-tassent, between the bankrupt and Jesse and Samuel L. Brush. At the trial the plaintiffs established by Nixon, whom they released, that the defendant agreed with him to be equally interested in a vessel and cargo then equipping for a foreign voyage. At the time, however, when this took place, Nixon did not know there was then a subsisting partnership between the defendant and Samuel L. Brush; but, after 7 barrels of beef had been purchased for the expedition, Jesse Brush informed the bankrupt that he and his brother Samuel were partners in business, and mutually concerned in the present adventure. After this communication, the residue of the loading was purchased taken on board, and the vessel sent on the voyage proposed. At *her return Nixon drew out the accounts of the expedition, and delivered a copy of them to Samuel Iv Brush, who neither objected to, nor admitted them, but said, “I can do nothing till my brother (the defendant) returns from Europe.” On this evidnee a motion was made for a nonsuit, because Samuel L. Brush was not one of the association when the connexion between the defendant and Nixon was first formed. This being overruled, the court charged, that the only consideration for the jury was, whether there was a sufficient evidence of a liquidation of accounts between Nixon and the defendant, or of an admission of the balance stated; if they were satisfied on these points, the plaintiffs would be entitled to their verdict for that amount, with interest; and thus the jury accordingly found.
    An application was now made to set aside this verdict, and grant a new trial on the following grounds: 1. Because there was no evidence of a partnership between Nixon and the two Brushes when the transaction commenced; 2. If there was such a partnership, the action ‘Sould not be maintained; 8. On account of the misdirection of the judge.

      Bogart, for the defendant.
    The contract respecting the adventure which has given rise to the present action, was between two parties only. This, therefore, can never affect a third person. In the case of Dewer v. Macomb and others, it appeared that after some of the parties had entered into a stock negotiation, Alexander Macomb was introduced, and this court determined that he could not be implicated in the original contract. The action here ought, therefore, to have been as between the original parties. The next point rests in some degree on the count on the insimul computassent. The evidence to that effect could not warrant the verdict. The mere receiving an account presented is not an admission of the balance it may show. It appears this was a partnership transaction. Till a dissolution, one partner cannot sue another. To maintain an action against one of a firm, there must be an express promise from the defendant. Moravia v. Levy, 2. D. & E. 488, n.(a). Here the reverse was the case, for the words used are tantamount to a refusal. Besides, they were spoken by a person not a partner (for he was not a party to the original contract) at a time when the defendant was absent in Europe. This, at the. utmost, can be only a promise by implication, and on the principles laid down in the authority cited, could not sanction the charge given.

      Johnson and Biggs, contra.
    If the parties were partners *when the contract was concluded, they are bound by it, though they were not known to be connected. Saville v. Robertson, (4 D. & E. 725,) decided, indeed, on the inverse of the position, though the principle itself was admitted. It is on this ground that dormant partners are held responsible. It was not necessary,»therefore, that Jesse and Samuel Brush should have appeared as connected in trade when the agreement was made. It was sufficient .that they were so; and when that circumstance Was afterwards disclosed, the full credit of the names of both was lent to the transaction, without any disclaimer from either. ' This is enough to make the firm liable, though the transaction was of a separate and particular matter. Be BerJcom v. Smith and Lewis, 1 Esp. 1ST. P. Ca. 31. Whether there was an actual promise or not was submitted to the jury, and the fair inference they drew from the expressions of Samuel was, that he could not pay it then, not that he objected to its amount. This was therefore, clearly a promise from both the partners, obligatory on each, and the action properly brought against the defendant as surviver. In the case of Bewer y. Macomb and others, several partners made a joint contract for the purchase of stock. After this, and before payment or delivery a new member was taken in, and the question was, whether he should be liable on the contract previously made. The court determined he should not. There the contract was perfected before he was a member of the firm. Here the contrary is the fact. The principle that a balance long struck, without any objection being made, shall be deemed to have been assented to, ought, in the present case, to be held to_ apply. The account was rendered in ’96, and never objected to till the time of trial.

      Bogert in reply.
    The expressions of Samuel L. Brush contain nothing to support the action. They prove neither express promise, nor admission. They simply import that he had nothing to do with the business, and refer the whole to the return of his brother.
   Livingston, J.

delivered the opinion of the court. The first objection to this verdict is, that Samuel Brush, not being a partner known to Nixon at the time of forming this adventure, but admitted afterwards, the action, if maintainable at all, is only so against Jesse Brush, with whom alone Nixon contracted.

This objection fails, in point of fact, there being sufficient evidence of a general partnership between the Brushes *when the voyage was determined on; for shortly thereafter Jesse introduced his brother to Nixon, as his partner in business, and as concerned with him in that enterprise, to which Samuel must have assented. Now, although there be some little uncertainty about dates, we are warranted in believing that this general partnership between the brothers existed prior to the undertaking of this voyage. It becomes unnecessary, therefore, to consider how valid the objection would have been, if Samuel had not originally been interested in this speculation. Probably, as in such case, the original contract would have been between Nixon and Jesse Brush, the latter alone, on the authority of Saville v. Robertson and Hutchinson, 4 D. & E. 720, would have been liable for any balance claimed by the former; but on this point we give no opinion.

Another objection, and, in our judgment, a fatal one, is that this being a partnership account, the action, in this form, is not maintainable. To obviate this difficulty, it is said that here was an accounting together, and a promise by Samuel Brush to pay the balance. Were this so we should certainly not be for sending the plaintiff’s to another forum, after the delay and expense which they must have incurred here, but that partners cannot, generally speaking, sue each other at common law, is a principle too well settled to be now shaken, nor is it necessary to inquire why it is, or ought to be so. Actions, however, of this kind, have lately been sustained after a balance struck and an express promise to pay. 2 D. & E. 483.

Further than this we are not willing to go, nor would some of the older cases justify our going this length. Sc far from an express promise to pay here, there is not even an acknowledgment of any balance being due. The ac count as stated by Nixon, but not even signed by him, and made out in tbe absence of the other partners, from books kept by himself, is delivered to Samuel Brush, (his brother being absent from the state,) who, without objecting or admitting it to be correct, said, “ he could do nothing until his brother returned from Europe.” This conduct admits of but one interpretation. Samuel Brush, supposing his brother better acquainted with the affairs of this concern than himself, was determined not to commit himself. We accordingly find his language as cautious -as it could well be. If being silent as to objections, ánd receiving the account, are to be evidences of a promise to pay, we know not how a man is to act so as to avoid *being drawn into a promise of this kind. An account, and particularly a partnership one of this kind, where there was no general connexion in business, and where the books were kept by Nixon himself, might be full of errors, and yet neither of the others be able immediately to detect them. No argument, therefore, can be drawn from the silence of Samuel Brush. But it is asked, why was the account kept so long without returning it with objections ? From the case, no one can say how long Samuel Brush did keep it, for he is dead, and may have died, for aught that appears, the very day after the account was delivered, and as to the present defendant, it does not appear when he returned from Europe, nor is there any evidence that he ever saw the account before this action was instituted. But keeping the account in this way can, at best, only be evidence of its being just, were the parties litigating in a court of chancery, but could not amount to that express promise to pay, without which a suit here cannot be maintained. The verdict, therefore, is palpably against evidence, and a new trial must be had with costs to abide the event of the suit. The costs are disposed of in this way because the jury were directed to find for the plaintiffs, if they were satisfied “ there had been a liquidation :f accounts between the parties, or an admis* sion of the balance due, as stated in the account rendered by Nixon.” The jury should have been told “that, without evidence of an express promise.to pay this balance, the defendants were not liable.”

Spencer, J.

Three objections are raised to the verdict in this case: 1. That when the contract was made between Jesse Brush and Nixon, Samuel was not a partner; 2. That the evidence offered by the plaintiffs was not sufficient to justify the verdict; 3. That the Brushes were separately answerable to Nixon, as joint partners with him, and not jointly answerable, and, therefore, the remedy is at law.

The first objection is founded on the evidence in the case, that Jesse alone made the contract with Nixon. But the case states,' although he did not then know of Samuel Brush, that after only seven barrels of beef had been purchased, Samuel was introduced by Jesse to Nixon, and it was then declared by Jesse that they were partners in business, and concerned together in that adventure. It also appears that when the account was rendered, it was delivered to Samuel, who made no objection as to the amount or manner of the charge. From these facts there can be no manner of doubt, that the *jury were warranted in presuming the partnership between the brothers was anterior to the contract made by Jesse with Nixon. If so, it then follows, that whether he was known to Nixon or not, he would, as a dormant partner, be equally responsible. Grace v. Smith, 2 Black. Rep. 998. The second objection is, I think, equally untenable. The evidence having shown the Brushes to be partners, the delivery of the account to one of them, and its being retained so long, are strong testimony of an admission of its correctness. The reason assigned by Samuel was no excuse for his not examining the accounts, and objecting to them if objectionable. It has been held in chancery that an ao count current, sent by one merchant to another, with a balance struck in favor of the remitter, shall, after being kept two years without objection, be considered as a stated account. Ticket v. Short, 2 Ves. 239. Sherman v. Sherman 2 Vern. 276 The rules of evidence being the same in both courts, I have therefore ground for saying, that in the present case, where the lapse of time was greater, the detention of the account so long, without expressing the least objection, was an admission of it. If it was considered as a stated account, the interest which the jury allowed was correct.

The third objection appears to me to be equally unfounded. Why, with respect to a particular share of a vessel, there may not be partners, I can see no reason. If there may be, then undoubtedly they might, in that capacity, become answerable to another person, holding a distinct share in the same vessel, as well as to any other individual. It is not stated in the case, but it has been attempted to be inferred, that Nixon and the Brushes were joint partners, and, therefore,.that the only remedy is in chancery. Without discussing whether, if they were partners, a suit at law could be maintained in the present case, I proceed on the ground that they were not partners. The defendant and his brother, as owners of a part of the ship, were bound to furnish their proportion of the cargo. Instead of getting credit of a third person, not interested in the vessel, they obtain that credit from Nixon, and why, for such advances, there should not be a legal responsibility I cannot perceive. It is true, that as respects third persons, the entire owners might be answerable jointly ; not, however, on the technical ground of partners, but as joint owners. The ingenious author of the Lex Mercatoria Americana, p. 423, very properly questions the notion that shipowners are to *be considered as partners. On the whole, in my opinion, the verdict ongh. not to be disturbed.

New trial.

       In Wright v. Hunter, 1 East, 20, the court of king’s bench say, if three persons own one portion of a ship, and a fourth another, tho' gh as between creditors, they constitute one partnership, yet, as between themselves, the three make a distinct partnership; with whom the fourth may contract, and on that contract sue one or all of them, and, if all be not sued, they may plead in abatement.

       One partner, in a particular transaction, is not liable to the others, except on an express promise to pay. Townsend v. Goeway, 19 Wend. 424


author: Per Guriam.

text:
    Gordon, surviver of Munro and Gordon, against Church.
    If an assurer know that a policy, though in the name of the broker, is in fact effected on account of another, a set-off of a debt duo from the broket cannot be made in a suit by him, on that policy, though it be carried oc in his own name.
    Assumpsit on a policy of insurance.
    The plaintiff and his deceased partner were brokers, and effected the policy in question without naming the party interested, and describing themselves as brokers only by the customary marginal insertion of their names as such. It was, however, generally known, among the underwriters, that this, and several other policies on the same risk, were on account of a charitable association in Scotland, the trustees for whom had given the orders. In March, 1802, the plaintiff and his partner made a composition with their, creditors for fifteen shillings in the pound, payable by instalments, the last of which was at eighteen months, and not due when this action was commenced. The others had been paid. On the 10th of April following, the vessel not having been heard of for a year, ajoss was claimed as for a missing ship, averring the interest in the trustees. The defendant admitted the justice of the demand, but contended he had a right to set off the amount of the last instalment. The only question was, whether he was so entitled or not.

      Hopkins, for the plaintiff.
    The set-off, in the present case, cannot be allowed, because the plaintiff sues as a mere trustee, and the defendant’s claim is on account of a debt due from the plaintiff himself. Trusts are acknowledged at law. In Winch v. Keély, 1 D. !t E. 619, the court permitted a bankrupt to sue in his own name for a debt originally due to himself, but which he had assigned previous to the bankruptcy. The defendant pleaded the bankruptcy, but the court said he sued as trustee. So in Bromly v. Brook, cited 6 D. & E. 621, to debt on bond, a plea was allowed, showing that it was given in trust for money lent by a third person, who was indebted to the defendant more than the amout. So in Wilson v. Watson, 1 Esp. Dig. 239, or 240, the same principle was adopted. Trusts, therefore, are recognized in courts of law, to prevent, as would, otherwise be the ease, the debt of A. being paid with the money of B. This doctrine we contend for has been confirmed in this court, in the case of Johnson v. Bloodgood. (See 1 Lex Mer. Amer. 507.) The defendant was a debtor to *the plaintiff, who assigned all his property in trust for his creditors, subsequent to which the defendant purchased an overdue promissory, note, made by the plaintiff, and in an action by him, on behalf of the assignees, the court refused to permit a set-off of the note. A further objection to the claim now urged is, that the damages are unliquidated. It is settled, that whatever is to be the set-off must be ascertained and due at the time of action brought. Mont, on Set-off, 18, 19. The damages here are to be fixed only by jury intervention, and that is alone sufficient to preclude the right insisted on by the defendant.

      Pendleton, contra,
    was stopped by the court.
   Per Guriam.

No set-off can be allowed in this case. The suit is on a policy which the plaintiff effected, as a mere trustee, for a charitable society in Scotland, and the case warrants us in concluding this was known to the defendant when he subscribed the policy.

Judgment for the plaintiff.

       See ante, 34, Brown v. Owning, n. (a.)


author: Per Guriam,

text:
    Livingston against Livingston.
    Debts due on judgments docketed previous to the passing of the bankrupt law of the United States, remain a lien on the lands then held by the bankrupt, and have a priority in payment, out of the lands affected by them, before the general creditors, the'commissioners’ assignment passing such lands, subject to all judgments so docketed, if the judgment creditor has not come in under the commission.
    On scire facias on a judgment docketed on the 25 th January, 1800.
    By the 63d section of the bankrupt law of .the United States, passed on the 25th of April, in the same year, it is enacted, “ that nothing contained in this act shall be taken or considered to invalidate, or impair, any lien existing ax the date of this act, upon the lands or chattels of any person who may have become a bankrupt.” In September, 1802, a commission was issued against the defendant, on which he was declared a bankrupt, and in the November following he obtained his certificate. The plaintiff did not prove his debt, or in any manner come in under the commission.
    The question was, whether the lands held by the defendant, at the time of docketing the judgment, passed by the commissioners’ assignment, discharged of that judgment, or whether it remained a subsisting lien paramount all claims of the creditors ?
    Hoffman, for the plaintiff.
    The English statutes have no provision sjmilar to that in the section stated in the case. The decision in their books are under a law, similar in its regulations to the 31st section of the act of congress, by which judgments, and other debts by record, are put-on a level with simple contract demands. It would be so here, did this section *stand unquali-lied, for then it would, like the English statute, have a retrospective, as well as prospective operation. But the 63d section confines the effect of the act to future judgments, and preserves the lien arising from those previously obtained.

      Higgs and Harison, contra.
    The lien mentioned in the section relied on, contemplates only such as are created by the act of the party, as mortgages and the like, or those of factors, but not those which are induced by effect of law, and obtained in invitum.

      Radcliff, in reply.
    Let the 63d section be read immediately after the 31st, and there would be no doubt of its having been designed as a proviso, or saving of the judgment, &c. contained in the 63d section. The position of the clause does not vary its construction. It must be interpreted with a regard to that part of the law to which it was intended to relate.
   Per Guriam,

stopping Radcliff. The act of congress does not affect judgments prior to the act. The 63d section of the bankrupt law was made on purpose to uphold them. It preserves all preceding liens, and there can be no doubt but that a judgment is a lien. The case of a factor would not have been affected without the 63d section. The true construction of the 31st section, compared and taken in connection with the 63d, is, that it is prospective, and alludes only to future judgments. It would require express words to take a party’s pre-existing rights. Here the plaintiff never did any act waiving those he had under the judgment. They remain, therefore, unimpaired.

Judgment for the plaintiff.


author: Per Ouriam.

text:
    Miller and Graham against De Peyster and Charlton.
    If an assured, after capture, appoint an agent to prosecute his claim, such agent after due abandonment becomes the agent of the assured, and a receipt by him of the money for which the property has been sold, will be deemed a receipt by the insurer, who must look to the agent for the amount, and pay the assured his full loss without any deduction. All acts by such an agent, if bona fide, bind the underwriter.
    Assumpsit on a policy of insurance on the cargo of the schooner Chance, commanded by Graham, one of the plaintiffs in the cause.
    The vessel and cargo being captured by a French privateer, were sold by order of the Spanish Government at the Mantanzas, in the Island of Cuba, whither she was carried, and the proceeds of both lodged in the custom-house oí that place. After this Graham appointed an agent to prosecute his claim, and departed.
    The agent thus constituted, entered into a compromise with the captors, by which it was agreed that the money should be released on the captured’s paying all costs and charges, and giving *up one third of the money deposited. This being done the two thirds were received by the agent, who, in answering to the interrogatories, in a commission, acknowledged having the money, and stated himself ready to exhibit the documenta and accounts, with the balance, to any one duly empowered. The question was, whether, as two thirds of the value insured were in the hands of an agent appointed by one of the assured, they could, notwithstanding a due abandonment, recover as for a total loss ?
    Harison, for the plaintiff.
    Had we not left an agent to manage the affairs of the vessel and cargo, there would, it is allowed, have been no doubt as to our right, but that having done so, and not having staid to prosecute, the claim is taken away. This case is exactly within the decision of Berens v. Buclcer, 1 Black. 313. All compromises, bona fide made, bind the insurer. After abandonment, the agent of the insured is, like the insured himself, the agent of the underwriter.
    Pendleton, contra.
    The question is, whether there shall be a total, or an average loss. We contend the money re-, ceived by the agent of the assured is the same as if received by the assured himself, and must be deducted from the amount of the loss. This principle was settled in the court of errors, in February last. The person into whose hands the money has been paid, may have demands against the assured, and if so, he having received it under an appointment from them, will be entitled to set off the amount. We may thus pay the whole loss to the plaintiffs, and, when we ask for the proceeds from their agent, be answered with an account showing a credit to the full sum we may have paid. The plaintiffs ought not to doubt their own agent. By receiving from the underwriter one third, and giving credit for the two thirds at their disposal, complete justice is done.
    Hoffman, in reply,
    was stopped by the court.

         J. B. Chrurch v. Bedient and others, 1 Caines’ Cases in Error, 21, but is that ease the vessel was sold in her home port, and the proceeds of her in the hands of the assured himself.

   Per Ouriam.

The composition made by the agent, appointed by Graham, the master of the vessel, and part owner of the cargo, was done in good faith, after a capture and abandonment. It was made for a benefit of the insurer, to whom the person intrusted with the management of the business must be considered as the agent. It was a discretion within the scope of his authority. A discretion which, if prudently exercised, would often be for the benefit of the underwriters, but which would never be used if at the hazard of turning a total into a partial loss. Had the balance, after payment *of the composition money and charges, been received by Graham himself, it might have been a proper case for deduction. But the money is still in the hands of the foreign agent. He may fail, and the assured ought not to run that risk. It is to the person in whose hands the money is that the insurer must look. Judgment must, therefore, be for the plaintiffs,

Judgment for a total loss.

         See Abbott v. Broome, 1 Caines' Rep. 303, n. (a.)


author: Thompson, J.

text:
    Jackson, ex dem. Van Denberg, Van Vecten, and Elting, against Bradt.
    A tenant entering under a person claiming the whole in severalty, is not entitled to the value of his improvements from persons recovering as co-tenant.
    See this case, ante, p. 169. The point ivas, whether the defendant, in consequence of his entry in 1771, or 1772, by permission of Bernardus Bradt, was entitled to the value of his improvements, under the acts of the 16th March, 1785, and 10th of February, 1791.

      Woodworth., (Attorney-General,) for the defendant.
    The construction of the acts, it may be said, is to be confined to lands held by tenants' in common, whereas Bernardas Bradt was solely seised of the legal estate. Allowing this, still it is was in trust for the persons to whom he was, by the decision of the court of appeals, ordered to convey. Though the legal estate was in him, the trust was for others, and on the rule that what ought to be done is to be held as done, he must be considered as a tenant in common from the very first moment of his title. The principles of the statutes apply to equitable as well as legal estates. They were framed for the purpose of compensating the one by whose exertions many might be benefited.

      Henry and Van Vechten, contra.
    The words of the act are against the position contended for. It was passed in favor of those who held in conjuction with others, not in opposition to them. The very circumstance of denying our right is sufficient to destroy the equity insisted on. An equity cannot arise from an adverse and wrongful holding. Had the improvements been intended to have been allowed for, the court of appeals would have saved 'them.
   Thompson, J.

delivered the opinion of the court. Under the facts in this case the question is, whether the defendant stands in a situation which entitles him to a compensation for his improvements under the statutes referred to? We think not. At the *time Bernardus Bradt put the defendant into possession, he did not claim to hold either an estate in joint tenancy or in common in the premises, but he claimed the whole in seve-ralty. It was held in like manner by his children, until the year 1797, when they were compelled to convey a moiety to the lessors of the plaintiff, and those under whom they claim. The cases contemplated by the statute were thsoe where a part owner or a proprietor who recognized' the interest, or right of others with him, should make or authorize improvements to be made. The statutes look to a partition, and the uncertainty where the shares will fall. In such cases good faith requires indemnity for improvements, but not so where the improvements have been made in defiance of, and adversely to, the claims of every body else. To compensate the defendant for his improvements, prior to 1798, would be repugnant to the decree of the court of appeals, and to the defendants’ deed given in pursuance of such decree. It is presumable that all equitable claims, which the parties to that decree might have had, were taken into consideration. The deed is absolute and unconditional, and must pass the improvements as well as the fee of the land. Besides, the plaintiffs showed title to but ten twelfths of the premises, and, therefore, come into possession only as tenants in common with the defendant, and it cannot be just that he should receive compensation for all his improvements, and still retain two twelfths of them. Ho rule of apportionment is appointed by the act. Ct contemplates only cases where the rights, or shares, in the premises, are reduced to estates in severalty, and ex ■elusive possession claimed. The opinion of the court, therefore, is, that the defendant is not entitled to compensation for his improvements.

Application denied.


author: Livingston, J. THOMPSON, J.

text:
    The People against Barrett and Ward.

    After a prisoner lias pleaded to an indictment, the jury been sworn, and evidence offered, if the public prosecutor, without tho prisoner’s consent, withdraw a juror merely because he is unprepared with his evidence, tho prisoner cannot afterwards be tried oe the same indictment; if he be it is good cause for arresting the judgment.
    The jury in this cause, which was an indictment for a conspiracy, being duly sworn, the defendants were arraigned, and pleaded not guilty. Immediately after this, the district attorney served on Barrett a notice to produce a promissory note, mentioned in the indictment, or that parol testimony would be given of its contents; and asked his counsel if they were ready for trial, to which they answered they were. The *note was then called for, and on its not being produced, the district attorney offered the parol evidence. To this they objected, alleging the want of due notice, as the note was not in their possession, but at a house fourteen or fifteen miles distant; and the judge, being of the same opinion, refused to permit the parol testimony to be adduced. Whereupon the district attorney moved for leave to withdraw a juror, which was granted without the consent of the defendants. On a subsequent day they were again arraigned, tried, and found guilty on the same indictment. The question was, whether these circumstances were not sufficient to arrest the judgment ?
    Orary, for the defendants.
    We have to contend for this position, that if a juror be withdrawn without the consent of a prisoner, and merely for want of sufficient evidence to convict, he cannot, after evidence offered, be put again upon his trial for the same offence. That the jury sworn and charged in a criminal case cannot be discharged (without the prisoner’s consent,) till they have given a verdict,, is acknowledged to be the common tradition of the law. 4 Hawk. 459, b. 2, c. 47, s. 1. This is confessed even by the few cases which, in the reign of Charles II., were decided to the contrary. Sir T. Baym. 84. But all the books are against these determinations. Lord Coke, in 1 Inst., 227, b. sajrs. "a jury sworn and charged in case of life and member, cannot be discharged by the court, or any other, but they ought to give a verdict.” This position he, in 3 Inst. 110, extends to other inferior cases. “ To speak it here,” he says, “ once for all, if any person be indicted of treason, or of felony, or larceny, and plead not guilty, and thereupon a jury is returned and sworn, their verdict must be heard, and they cannot bo discharged. In the case of Whitebread and Fenwick, (2 State Tri. 827, 828,) the practice now contended against was adopted; but those proceedings have been reprobated, even by the crown lawyers themselves; and Mr. Justice Foster, in speaking of them, declares them to be “ most unjustifiable,” and such as he “ hopes will never be drawn into example.” Foster, 16, 80, 88. It is only a Case of necessity that will warrant the withdrawing a juror. As if a man in a state of frenzy should put himself on his trial. 1 Hale, 85. Or a woman be seized with the pains of labor when under trial. Elizabeth Meadow's case, Foster, 76. Even in the case of Olcott, which has been thought to warrant the measure in this, there was a species of necessity; for the jury, after a very long confinement, ^declared they never should agree, and the court is not obliged to keep them together till they concur from fear of perishing with hunger. Holt, Oh. J. lays it down, that in a criminal case, not capital, a juror cannot be withdrawn unless by consent of both parties. The King v. Perlcins, Carth. 465. The same was ruled in an indictment for barratry. Rex v. Jeffs, 2 Stra. 984. The offence there was punishable in the same manner as that of which the present defendants have been accused. The right claimed by the district attorney is of so dangerous a nature, that the court never will tolerate it, even under the form of a power to be exercised under the discretion of the court. It ought not to be allowed, though wished to be shielded, by arguments derived from a wish to attain the ends of public justice. It will be a source of constant resort, whenever, from any neglect or omission, a prisoner cannot be convicted on his first being brought up for trial.
    THOMPSON, J. On the trial I gave no opinion as to the propriety or impropriety of withdrawing a juror. Wheu leave to do it was applied for, I recommended the counsel for the prisoner to permit it, reserving, however, the question for the determination of the court, and imagined the whole to be a matter of arrangement.

      Orary. I shall add only a few remarks on two citations that may be made against us. The first is the opinion oí Hale, in his Pleas of the Crown, 295, 296, 297. He speaks of the practice of his time, under the reign of Charles II. The doctrines of that period have been long overruled; and it may be doubted whether he himself does not allude to circumstances of misconduct in the prisoner. “ If it appear that evidence be kept back,” &c., are his words. Nothing of that kind can be, or is, imputed here. The note was nearly twenty miles* off. In 1 Vent. 69, The King v. Jane D-, the witnesses had been tampered with, and kept out of the way. These circumstances do not appear, and the authorities therefore cannot apply.
    Russel, (District Attorney,) contra.
    I shall first submit to the court whether the informality of the notice was not waived by the declaration of the defendants that they were ready for trial ? If not, I contend that in all cases the court possesses a discretionary power of withdrawing a juror, when justice requires it, even against the consent of the prisoner. The very case of doing so, if a man plead to an indictment when in a state of frenzy, is put as one of the proofs of this discretion, *and is said to rest upon it. 1 Hale, 35. The doctrine in 2 Hale, 295, is but partially stated. To withdraw a j uror is there said to be “ nothing more than ordinary,” when it appears there may be “ a fuller discovery,” and this, top, “ lest many notorious murders, or burglaries, should pass unpunished.” The reason, therefore, that it has been anticipated, would be urged, that is, lest there should be a failure of justice, is the very one given by Lord Hale, and therefore ought to be good and sufficient now. In th8 case of bad indictments, the court always, and on the above grounds, discharges the jury. Rex v. Segar & Potter, Comb. 401. The authority of Sir T. Raym. 84, is acknowledged to be in point. In Roberts' case, Kelyng, 26, the jury were discharged by the court, merely because they saw the evidence insufficient. It may be said these were cases of faulty indictments; but in that of Gardiner and others, ibid. 47, the jury were discharged merely because the testimony could not be made out without the examinations taken before the lord mayor. The right to do this, when the evidence is not complete, was again recognized, in Jones and Bevor's case, ibid. 52. Foster himself, p. 328, mentions that he should, in certain cases, use this discretionary power. It is worthy of remark, that the positions of Lord Coke, which have been relied on in 2 and 3 Inst., were examined in' Kinloch's case, (Foster, 16,) and denied to be correct. The time for which notice is to be given to a criminal to produce a paper, is nowhere settled. It has not been determined that it ought to be a two-day notice.
    THOMPSON, J. I decided nothing as to the time requisite, but merely that a notice to produce, instanter, an in strument near twenty miles off, was not good.

      Russel. From the conduct of the prisoner, it is to be presumed the paper was there. At all events, we contend that the withdrawing a juror is matter of discretion in the court,-and that they have a right to exercise it whenever they see the justice of the case requires it.

      Henry, in reply.
    The general position is, that where a jury, in a criminal case, is once charged with a prisoner, they cannot be discharged without his consent. There are, however, some exceptions; but the rule itself was framed as a shield to the subject against the power of the crown. This principle, if correct in a monarchy, is still more so under a republican form of government. But under both systems, necessity qualifies the rule, and proves its existence by the very ^exception it allows. One class of cases is, where the prisoner himself, by improper practices, has endeavored to elude justice. Another, where the indictment is not appropriate to the offence. A third, unavoidable accident; such as the absence of an expected witness, insanity, or any other dispensation of Providence. A fourth arises from the jury themselves; departure of one, or an invincible disagreement among the whole. 2 Hale, 295. For though unanimity in a verdict be necessary, a court will not force a jury into it for the sake of self-preservation. A fifth class, may be where the trial is so prolonged that the court and jury are tired out, and require refreshment. Within one of these descriptions of cases, every authority, in which the power has been exercised, will, on examination, be found to rank. It is, however, to be remarked, that in the edition of Kelyng, by Browne, in a note in p. 47, all the determinations cited from him are denied. Does, then, the present case fall within any of the qualifications enumerated ? There is not one which presents the naked fact of withdrawing a juror, merely because a public prosecutor was not prepared. It is claimed as a right to exercise this discretion ad libitum. From reason, from authority, from the policy, nature, and structure of our government, it ought not to be allowed.

       See ante, 100.

   Livingston, J.

delivered the opinion of the court. Without denying the right of courts to withdraw a juror in criminal causes, and put the defendant on his trial a second time, it is evident this power should not be lightly used, but confined as much as may be to cases of very urgent necessity, where, by the act of God, or by some sudden and unforeseen accident, it is impossible to proceed without manifest inj ustiee to the public, or the defendant himself. We do not mean, at present, to define all, or any of the cases in which this practice may be pursued, but we all agree that a defendant ought, in no case, to be put on a second trial for the same offence, where a juror has been discharged’on no other ground than because the public prosecutor found himself unable to proceed for the want of sufficient testimony to convict, and where this inability* was the consequence of his not taking the necessary measures to obtain it. To discharge a juror, under such circumstances, would be liable to great abuse and oppression. If the prosecutor disliked the jury, Or some of them, or hoped to find the defendant less prepared at a future day, or wished, unnecessarily, to harass him, he might, at any time, attain his end if, *by solely alleging the want of proof, after a jury were sworn, he could get rid of them. It will be much better that the guilty now and then escape, in this way, than to introduce, or sanction, a practice which may place the innocent entirely in the power of a court, or a public prosecutor, which this mode of trial was intended to guard against. It will be recollected there was no improper practice here, on the part of the defendants, or any tampering with witnesses to keep them out of the way. In saying they were ready for trial the defendants told no more than the truth ; but such declaration could not have obliged them to produce a paper against thems'elves, and which it does not appear they had with them. We are, therefore, of opinion, that the court below ought not to proceed to judgment on this conviction, but discharge the defendants.

It is proper to take notice of our opinion in this case, in August term last, and which differs from the one now given.

The question appears, at that time, to have been sub mitted ex parte, and without any intimation of th£ particular circumstance under which the juror was withdrawn. On the statement then made, which must have been very incorrect, we only meant to say' that there were cases in which a party might' be tried a second time, after a discharge of the first jury; but not that this rule was universal and liable to no exceptions. To dismiss a jury, merely because there be not testimony sufficient to convict, with a view to another trial, falls within the reason of none of the authorities which have been cited, and if we had known as much of this case then, as has been disclosed now, we could hardly have hesitated in pronouncing the second trial of these defendants irregular.

THOMPSON, J.

The case does not state the facts which took place at the trial. It appears permission was given to withdraw a juror. An application was made for that purpose, and some arguments urged as to the propriety of the measure. I advised an acquiescence, in consequence of which I considered then, as I do now, that this should come up as a case by consent to settle the point.

Judgment arrested.


text:
    *J. M. Drummond and P. M. Drummond against Wood.
    If a consignment be ordered to be delivered to a particular house, if it cannot be sold at a given price, and the consignee have authority to place it with any other, in case it cannot be sold, receiving a certain specified advance, should the consignment arrive at a period when the house mentioned has become bankrupt, and the market so reduced that neither the price nor the advance specified can be obtained, the consignee will be warranted in taking an advance of a less price, if he act bona fide, of which remitting the sum he does receive, and the accountable receipt for the property he has delivered, according to his instructions, will be evidence.
    This was a special action on the case, to recover from tbe defendant, master of the ship Spy, the value of seventy five pipes, four hogsheads, and twelve quarter casks of Madeira, shipped on board his vessel, for the East Indies, and consigned to his care, under a letter of instructions containing the following orders : “You are empowered to dispose of these wines, either at Ceylon or Calcutta, or at both places, provided that they liquidate us the cost of invoice, independent of the freight, commission, and other charges. Which, when done, you will make use of the net proceeds, and remit the same to the order of Stephen Kingston, Esq. of Philadelphia. It is to be understood that should the markets at Ceylon or Calcutta prove dull, or overstocked with our wines, and provided that they cannot be immediately disposed of, or, during the stay of your ship in India, so as to save the first cost and charges, you will in such case hand over whatever may be unsold to Messrs. George Prager & Co., of Calcutta, who will keep them for our account until the market warrants a saving and advantageous sale.” The plaintiffs accompanied this letter with one to Prager & Co. communicating the contents of that to Wood, and containing the following postscript. Since writing the foregoing, it occurred to “ Captain Wood, that you might not think proper to make an advance of two thirds of the value of the wines, per invoice, at the same time there might be other houses that would. In such case, he has requested us to empower him to accept of an advance of two thirds from either your good house, or such other as may wish to take charge of the wines, in case he should not be able to dispose of them during the stay of the ship at Calcutta.” On her arrival there the house of Prager & Co. was found to be insolvent, and the market overstocked with Madeira wine, which had consequently fallen to a very low price. The defendant, therefore, valued himself on Messrs. Campbell & Co. who were in good credit, and received from them, an advance on the shipment of about two sevenths of its value, which was the highest advance that he could obtain. This he remitted to Mr. Kingston, taking from Campbell & Co. the following receipt: “Received, Calcutta, *9th January, 1801, from Captain Richard Wood, a consignment of, &c. which wines we promise not to sell for less than prime cost and charges, which is about 430 sica rupees, the proceeds of which, after deducting the advances We have made upon them, we shall hold subject to the order of Stephen Kingston, Esq. of Philadelphia.” At the period when this transaction took place, Madeira wine was down to 225 sica rupees the pipe, being a little more than half the invoice price, and at the time of bringing the suit, no advice of a sale having been effected had been received.
    A verdict was taken for the plaintiffs, by consent, subject to the opinion of the court whether they were entitled to recover, and submitted without argument.
   Thompson, J.

delivered the opinion of the court. We think the plaintiffs are not entitled to a recovery. The instructions to the master were, to dispose of the wine immediately if he could obtain a given sum, and to remit the proceeds to Stephen Kingston, of Philadelphia; otherwise to leave it with Prager & Co. for disposal, under the same limited orders as to price and remitting. By the postscript of the letter to Prager & Co. according to the reasonable interpretation thereof, the plaintiffs gave the master some discretionary powers. On his arrival at Calcutta, he could find no market for the wine, and the house of Prager & Co. had failed. Under these circumstances we think it would have been a gross abuse in him to have delivered the wine into the hands of those bankrupts. He, therefore, as every prudent man would have done, intrusted the cargo to the care and management of another house, of established credit, receiving considerable advances upon it. No sale could be made agreeably to the plaintiffs’ instructions. The best and most advantageous disposition of it that could have been made, was that which actually was made. The proceeds of the wine, so far as they were received by the master, together with the receipt from the house in whose charge he left it, have been duly transmitted, where all the proceeds were ordered to be remitted, to Mr. Kingston. The defendant appears to have acted in good faith, and within the spirit and good sense of his instructions. Where no fraud is chargeable on an agent, his conduct ought to receive a liberal and favorable construction. The opinion of the court, therefore, is, that the defendant ought to have judgment.

Judgment for the defendant.