author: LrviNGSTON, J.

text:
    Steinbach against The Columbian Insurance Company.
    A voyage from one port to another through an intermediate port, where the goods are to be relanded, and shipped to those of their ulterior destination, may be insured as a voyage from the' first to the second port, without mentioning the third. Papers referred to by a witness in his depositions, may be produced on a trial to refresh his memory. Copies of papers referred to in depositions may be resorted to in order to their elucidation. After a witness has been examined on interrogatories, and cross-examined, and his depositions read, a new trial will not be granted, on a supplemental affidavit, stating mistake, or surprise. A new trial will not be granted, because of the discovery of new witnesses to the same fact; nor because a juror was challenged in the absence from court of the defendant’s counsel. Quoin, whether on a trial on a policy of insurance, it is not a good challenge to the favor, that one of the jury is an underwriter.
    This was an action on a policy of insurance, on the sbip Catharine, at and from Barcelona to Baltimore. The loss averred to be from arrest and detention by the Spanish ^government, at Barcelona, The depositions of a Mr. Benjamin M.Mumford, examined on the part of the defendants, and cross-examined by the plaintiff, were, on the trial, read by the plaintiff. Their contents led to establish a belief, that the voyage actually intended was direct to the Savanna, or some place in the-West Indies. They referred, however, to certain papers and documents, prepared by the deponent at Barcelona, shortly after the seizure of the Catharine, in order to obtain compensation from the Spanish government, and - in the captain of all these the voyage was described as for Baltimore, and from thence to the Savanna, in order, as stated by tbe papers, to resbip at Baltimore, and avoid, by tbis circuitous mode, tbe danger of confiscation for going immediately from one belligerant port to another. These papers were lettered, and at the time of Mumford’s examination, shown to him, and be swore be believed them to be true copies of originals,-deposited in tbe archives of tbe consular office in Barcelona. In order to explain tbe manner in which tbe voyage to tbe Savanna was to be prosecuted, tbe plaintiff offered these copies, to which tbe counsel for tbe defendants objected, that as tbe depositions were now read by tbe plaintiff, Mumford was bis witness, and these papers being only copies, unautbenticated, and adduced with a view of discrediting bis testimony, could not be received. This being overruled, a verdict was brought in for the plaintiffl The present application was, to set it aside, and grant a new trial, on account of the admission of tbe above testimony, and on account of some other witnesses being since discovered, who could further testify to tbe facts deposed to. Tbe points made on tbe argument are fully stated in tbe opinion of tbe coun, which was delivered by

         See Ely v. Hallett, ante, 60, n. (a.)

        Murdock v. Potts wag cited. See the observations on that case, 1 Lex Mer. Amer. 320.

   LrviNGSTON, J.

Several objections are made to the plaintiff’s right of recovering. 1. It is alleged that the voyage contemplated while tbe Catharine was at Barcelona, was different from tbe one insured, and that therefore tbe risk never commenced. The insurance being at and from Barcelona, it may admit of doubt whether, as the loss happened there, the defendants would not be liable, although a voyage from the Havanna were in contemplation. But on this point of law we give no opinion, because it is sufficiently proved that the * vessel was destined for Baltimore. Thus have the jury found, nor could their verdict have been different, without disregarding all the testimony in the cause. The defendants themselves are aware that this finding comported with the' evidence, and have accordingly directed theii principal attack against the testimony itself; for they say, 2. That Mumford was the plaintiff’s witness, and therefore could not be discredited by him. Whether this gentleman be regarded as the witness of the one or the other party, is not very material in deciding this cause; he had been examined out of court, at the instance of the defendants, and cross-examined by the plaintiff, who produced his deposition on the trial. Perhaps the best general rule in such cases, would be to consider the witness, if his deposition be read, as belonging to the party on whose application he was examined, without any regard to the person who may finally make use of it. But without deciding this point, we think nothing was done by the plaintiff to discredit Mumford, even if he bad been his witness. It is not every mistake which a witness may make, when speaking from memory, that will discredit him, and it would be a strange rule indeed, that a party producing a witness should not be permitted, even by the witness himself, to correct a mistake which he may have committed. Nothing more was done here; Mumford had sworn, that from certain papers, the destination of the cargo, according to his recollection, appeared to be for the Havanna,: after this, there could be no impropriety in showing him the papers to which he alluded, or any other to refresh his memory and to enable him to correct his error, if he had made one. This was no imputation on his character; it neither rendered him infamous nor unworthy of credit, as to the other point to which he had deposed; it discovered in the witness a laudable promptitude to rectify a mistake, into which an imperfect recollection had betrayed him, and thus added to, rather than detracted from, the weight of his testimony. 3. The exhibits B. and 0. being only copies, should not, it is said, have been produced. If nc allusion had been made to these papers, by Mumford, they could not have been produced to show the real object of tbis voyage; but he had already testified that he had made out certain claims against the Spanish government, *for the Catharine and her cargo, which stated the vessel to be bound directly for the West Indies : these papers, he added, were lodged in the Consulate office at Barcelona. Having sworn thus far from memory, the plaintiff had aright to refresh his recollection, by showing him copies of the claims referred to: on inspection, he might probably be able to determine whether they were true copies or not, and certainly if he believed them true, they would furnish better evidence of what the originals contained, than any parol account of their contents, which was the only way in which the defendants had attempted to prove them. There is no reason to say, the originals were in the plaintiff’s possession. They remained in a public office in Spain: and this kind of inferior proof was rendered proper by the defendants’ own conduct. They had not only examined the witness, as to the contents of these papers, but gave the plaintiff every reason to believe that nothing would be required of him but proof that the property was American. 4. The abandonment, it is said, was too late. The Catharine was seized in September, 1800, and not abandoned until fifteen months thereafter. It has already been decided by this court, in Earl v. Shaw, that an abandonment may be made at any time after the accident, provided, at the date of the abandonment, the loss still continues total. This being the case here, the abandonment was in season. 5. It is contended that Mr. Mumford was mistaken or.surprised on his cross examination, and that, therefore, a new trial should be had. For this purpose, his affidavit is produced, taken nine months after the trial, in which he states that the captions of the exhibits B. and C. were not shown to him, to the best of his knowledge and belief, and endeavors to explain why they were made as they appear, to wit, to prevent endangering the insurance. This explanation comes toe late; a witness under examination may explain and correct himself, but it will be dangerous and improper to receive any elucidation from him after the 'trial, and especially after the lapse of so many months': besides, the defendants were apprised of his deposition, long before the trial, and are without excuse for not calling on him then to make such explanations as might be deemed important. 6. But *there has been a discovery of new evidence, and for that reason there should be another trial. It is said that if a new trial be granted, there are two witnesses who were not known to the defendants at the time of the trial, who can testify as to the destination of the Catha-rine. This was the fact principally controverted on the former trial, and we are now applied to for another, merely because all the witnesses who knew something of the matter have not been examined. Every one must perceive the inconvenience and delay which will arise from granting new trials upon the discovery of new testimony, or other witnesses to the same fact. It often happens that neither party knows all the persons who may be acquainted with some of the circumstances relating to the point in controversy; if a suggestion, then, of the present kind be listened to, a second, if not a third and a fourth, trial may always be had. There may be many persons yet unknown to the defendants who may be material witnesses .in this cause, and this may continue to be the case after a dozen trials. Cases may occur in which, if great doubts exist, as the first decision, it may be proper, on tbe discovery of further witnesses, even to tbe same fact, to open tbe cause for a second discussion; but this is not one of them. Tbe principal fact here was clearly proved, and if Lewis and Byrnes bad both been examined, it is very uncertain whether tbe result would not have been the same. 7. Tbe last reason assigned for a new trial is, that a juror was challenged, in tbe absence from court of tbe defendants’ counsel, and in consequence of such challenge did not serve. It appears that tbe defendants’ counsel was in court when tbe trial of tbe cause was moved for and brought on: if be afterwards left it, it was bis own fault. In contemplation of law, be was so far present, during tbe whole trial, that no motion by tbe adverse counsel, after be had once appeared, could be regarded as ex po.rte. He bad a right to make bis challenges to tbe jurors, without inquiring whether tbe other counsel was in court or in tbe ball. On tbe challenge itself it is unnecessary to decide ; it may well be doubted, however, if it were not a good one to the favor: underwriters can hardly be proper jurors, in cases in which persons pursuing tbe same business are parties. Jurors should be “ omni exc&ptione majores.” The ^judgment of tbe court is, that tbe defendants take nothing by their motion, and that tbe rule to show cause why there should not be a new trial, be discharged with costs.

New trial denied.

N. B. In another action on the freight of the same vessel, under the same facts, there was a demurrer to the evidence on which the question was raised, whether a' demurrer to evidence confesses all the facts which a jury might infer? But the court avoided a decision on this point, saying there was enough to warrant the verdict of the jury. Spencer, J, however, declared he considered the demurrer confessed every thing a jury might infer. That he founded his opinion on the case of Ooclcsedge and Fanshaw, in Doug. 119, and a similar decision in tbe Livingston causes, in our own court of errors.

         It is no ground for the court to grant a new trial, that a witness called to prove a certain fact, was rejected on a supposed ground of incompetenoy, where another witness who was called, established the same fact, and the defence proceeded on a collateral point on which the verdict turned. Edwards v. Evans, 3 East, 451, confirmed in Smith v. Brush and others, 8 Johns. Rep. 84, where the court say, “it is against the general rule to grant a new trial, merely for the discovery of cumulative facts arid circumstances, relating to the same matter which was principally controverted upon the former trial." Though the fact be new, if it would have no influence in drawing a different conclusion,'on a point in evidence, a new trial will equally be refused. The King v. Teal and others, 11 East, 311: see Halsey v. Watson, 1 Caines’ Rep. 25, n. (a.)


source: Caselaw Access Project

author: Kent, Ch. J. THOMPSON, J.

license: Public Domain

text:
    Day against Wilber, q. t.

    If a return to a certiorari to a justice, state a warrant to have issued in pursuance of the act, and the defendant has appeared and pleaded, it is a waiver of the irregularity, if any, and the court will intend the warrant properly issued. The act to redress disorders by common informers does not apply to proceedings under the 101. act. Defects in a warrant aTe cured by appearing and pleading the general issue. Variance in the declaration from the process is cured by pleading in chief. A warrant may be in the name of an individual, and the declaration gui tam on behalf of himself and others. A first venire lost or mislaid is good reason for a justice to issue another. If a defendant requests a second venire to be issued when the first is not returned, he cannot assign it for error. A justice may continue his court from day to day. When a return states that the jury heard the proofs and allegations of the parties, the court will intend they were present. If it appear from the record, on a return to a certiorari, that the justice did not administer the oath prescribed by law, it is fatal on error, but the justice need not return the form administered.
    On affidavit of a clerical mistake, a justice’s return allowed to be amended after errors assigned, argument and judgment thereon.
    In Error, or a certiorari, to a justice’s court, upon a conviction under the 101. act, for selling spirituous liquors without a license. The plaintiff assigned twenty errors, but relied principally on the following: 1st. That there was no endorsement on the warrant, either of the name of the plaintiff, or the title of the statute on which the process was issued; 2d. That in the process or warrant issued on the plaint, there was no plea mentioned, nor that the defendant owed the plaintiff and the overseers of the poor any money and detained it from them ; 3d. That the plaintiff and defendant being freeholders, the process was by warrant, and not by summons; 4. That the declaration was in the name of the plaintiff and the overseers of the poor, when the process was in the name of the plaintiff only; 5. That the justice refused, on a motion made, to quash the proceedings; 6. That before the jury process was returned, another was issued; 7. That the justice opened the court on the 2d day of June, and continued it open till the third before he tried the cause ; 8. That the justice swore the constable “to attend the said jury, and to the utmost of his ability to keep that jury together until they had agreed upon their verdict,” whereas, by the law of the land, he ought to have sworn the constable to keep them “ in some private and convenient *place, without meat or drink, except water, and not to suffer any one to speak to them, nor to speak to them himself, unless by order of the justice, or to ask them whether they have agreed on their verdict until they have agreed on their verdict.”
   Kent, Ch. J.

I shall consider the causes alleged for error in the order in which they naturally/arise. 1. It is alleged that the directions of the act, commonly called the 10?. act, have not been observed, as the first process was by warrant, and not by summons. The act directs that the justice, on application under the act, shall issue a summons, or warrant, as the case may require ; that the process against freeholders and inhabitants having families, shall be by summons, unless the plaintiff shall prove on oath that he is in danger of losing his demand, of that he believes the defendant will depart the country, or unless the plaintiff be non-resident, &c. The return states, that the plaintiff below prayed process by warrant, and that ihe justice thereupon, and in pursuance of the act, issued his warrant; that the defendant was brought in on the warrant, and the plaintiff declared, and the defendant joined issue thereon, and prayed an adjournment, which was granted, and on the day to which adjourned, the parties again appeared, and then the defendant objected that the warrant did not issue in conformity to the act regula ting informations. As tbe defendant, therefore, acquiesced in the process, and never objected to it because it was a warrant, and it being stated to be issued in pursuance of the act, we are to intend it was duly issued, or if not so, the irregularity was waived by the defendant. 2. It is alleged that the suit, being for a penalty given by the 16th section of the tavern act, (1 Rev. Laws, 490,) ought to have followed the directions of the act passed 6th February, 1788, to redress disorders by common informers, which requires the name of the plaintiff and the title of the act to be endorsed. Proceedings under the 101. act are to be regulated entirely by that act; and the act relative to common informers does not apply to these proceedings. The terms of it are altogether inapplicable. It supposes a process to be issued by a cleric, and says that the like process shall be awarded as in an action of trespass at common law. 3. The warrant is alleged not to state a plea, *or cause of action to which the defendant is to answer, and that it is stated that the defendant is to answer to the people, whereas the 101. act says that justices shall not have cognizance of any cause wherein the people are concerned. The defects in the warrant, whatever they may be, are cured by the general ■ plea of the defendant! He has waived all these defects since he pleaded the general issue, and afterwards made no other objection to the warrant than that it did not conform to the act relative to common informers, and which act, as I have already observed, did not, and could not, apply. We have decided, in the cases of Wool and Bevil July term, 1801, and of Young and Canada, January term, ■ 1802, that a defective venire was cured, if the party made no objection at the time, but went on to trial; and there is equal, if not stronger reason, why a like conduct should cure a defective process, the only object of which was to bring the party into court. But I consider the process as good. It states the ground of action specifically, and that the plaintiff was the complainant upon oatb, and that the defendant was to be brought in to answer to the complaint of tbe plaintiff, and does not allege that he was to answer to the people. 4. It is alleged that the declaration varies in substance from the process. The proper answer to this is, that the defendant, by not pleading that variance, but pleading in chief, has waived it, and so this court has frequently decided in like cases. But it is not true, in fact, that there is any substantial variance. The declarations only unfolds more at large the same charge, which is briefly stated "in the process, to wit, the retailing of spirituous liquors without a permit. 5. Another objection is, that the justice overruled the motion to quash the proceedings, or, as the record says, to abate the warrant. The answer to this has already sufficiently been given, since the only reason assigned why it should be abated was, that the process did not conform to the act for regulating informations. 6. It is next objected, that the venire is defective; but as the venire was issued at the instance, and upon the prayer, of the defendant, it does not lie with him to allege error in it. This point was decided by this court in the case of Callinan v. Jilson, October term, 1801, and it has frequently been so decided in other cases; nor do I ^conceive it to have been illegal for the justice to have issued a fresh venire, when the first venire had not been carried into effect, but had been mislaid, kept., or withheld, by the defendant himself, to whom it had been delivered. This allegation in the record we are to take for truth, and it became indispensable, then, that a new venire should issue, or the act of the defendant might have totally defeated the plaintiff’s action. It would not have been legal, I apprehend, for the justice to have proceeded to try the cause without a jury, after the prayer of the defendant for one; and it would be most unjust for him to avail himself of his own laches, or act, to injure the action of the plaintiff. I am of opinion, therefore, that the issuing of the second venire was proper, and that it is to be considered as the process of the defendant below, and that no objection to the form of it will now lie with, that de fendant. 7. Another objection is, that the court was continued over from the 2d of June, when the first venire was returnable, to the 3rd of June, when the cause was tried. If the court was opened on the 2nd of J une, as we must intend, and the delay created by the defendant in summoning the jury rendered it requisite to keep ¿he court open till the next day, there was no error in that proceeding. It became necessary, and the parties were hound to take notice of it, and attend accordingly. There is nothing in the law to prohibit a justice from continuing his court from one day to the next, when the exigencies of the case require it. If the defendant neglected, or refused, to attend, the justice was authorized to proceed in the trial without him: but we are rather to intend that the parties vyere present at the trial, for the record states, that the jury did hear the proofs and allegations then and there made and exhibited. However, it is immaterial, in respect to the objection, whether the defendant was, or was not, present. 8. The last error alleged, and which requires notice is, that the constable was not sworn according to law to keep the jury. The act gives a precise form of oath in this case, and the return states that after the jury had heard the proofs and allegations, the constable was sworn to attend them, and to the utmost of his ability to keep them together, in some private and convenient place, until they had agreed upon their verdict. *The return does not state any further, as to the oath, nor are there any negative words excluding the inference that the whole oath was administered in the form prescribed. As far as the oath is stated it is correct, and in my opinion, we must intend the whole oath was duly administered. This intendment is, in many respects, reasonable; for, in the first place, there was no objection stated at the time, by either party, to the form of the oath; and setting forth the words of the oath was an act of supererogation in the justice, as it formed no part of the record and process before birn. The form of tbe oath to the witnesses is equally prescribed by the act, and yet the form is nevei or rarely set forth in the return to a certiorari, nor is it ever required. The record does not set forth the oath stated as given in haec verba. It does not pretend to give the exact forrii of the one administered. If the oath as far as stated had varied from the act, it might have altered the case; but pursuing it as far as stated, and not being averred to have been all the oath that was administered, we are bound to conclude the constable was legally sworn. It has been established by several decisions in this court, that we should liberally intend in favor of the legality of justices’ proceedings. Thus in the case of Wright v. Anthony, January term, 1802, we said we would intend an issue joined, if the parties went to trial on the merits ; and in the case of Gama v. Pen field, at the same term, the jury, it appeared, had found 8 cents for the defendant on a plea of payment, and we intended a set-off to help it out. These decisions are in conformity to the intent and spirit of the act, which declares, p 500, that we shall “give judgment according as the very right of the case shall appear, without regarding any imperfection, omission, or defect, in the proceedings in the court below in mere matters of form.” I cannot but think that reversing a justice’s judgment, because part only of the. constable’s oath is inserted in the record, would be a decision at once new and rigorous ; especially, when none of it need be inserted ; when there are'no words negativing the idea that the whole form was administeredwhen no objection was taken, at the time, ly the parties; when we are bound to overlook all defects of form, and decide on the very right of the case; and when, in many *other instances, we have liberally intended in support of their judgments.

THOMPSON, J.

concurred in the above opinion in alv points.

Livingston, Spencer and Tompkins, Js. in all, except as to the constable’s oath; on that point they conceived the error fatal, and therefore ordered judgment of reversal.

Judgment reversed.

Gold, the next day, on an affidavit, stating that the manner in which the oath was set forth in the record arose from a clerical error in copying, moved, on the authorities of Cowp. 425, Doug. 134, and 1 H. Black. 238, to amend the return. The Coúrt was pleased to order, that the entry of judgment should be stayed until further order, and that the justice have leave till the first day of next term to amend his return, so far as relates to the form of the said oath.

Motion granted.

        Varelst & Smith v. Rafael.

         The King v. Lyme Regis.

        Skutt v. Woodward.


author: Thompson, J. Livingston. J.

text:
    Bethune and Smith against Neilson and Bunker.
    If an assured be indebted to his broker, and give him a policy to effect an adjustment, which he does, and he thereon debits the insurer with the amount, and carries the same to the credit of the assured, it is not payment to him, unless he assent.
    This was an action to recover the amount of an adjustment on a policy of insurance. The instrument was thus endorsed : “ Adjusted a loss of ninety-eight per cent, payable in 30 days, which the brokers are requested to charge to our respective accounts, and cancel this policy.
    “ New York, 2d January, 1802.”
    On the trial, one Gordon, the broker who effected the policy, testified that the adjustment was in the usual form. That in New York, the customary mode of transacting business with insurance brokers is as follows: The broker receives tbe premium, and is in all cases debtor to the underwriter for its amount, wbicb is considered as due, after three months, when the broker is liable to be called upon by the underwritten for payment of any losses that have happened. These he settles if he has money in hand, (which is generally the case,) but notwithstanding the adjustment, the assured would not be entitled tp call upon the broker for the loss until the expiration of the thirty days, nor would the broker consider himself then liable to pay unless he had money of the underwriter’s in hand. Between the broker and underwriter the entry of an adjustment *to the debit of the latter, and carried to the credit of an assured, would, according to the conception of the witness, be conclusive on the insurer; and if the broker, at the time of making the entry has money of the underwriter in hand, the broker would be considered bound to pay at the end of thirty days. But though this is the case, yet if the broker held a note due from the assured, the witness did not imagine the assured could have used the credit given by the adjustment or entry by way of set-off ; had it, however, instead of a note, been an agreement in practice, then the witness thought the set-off would be admitted. The brokers receive from the underwriters a commission of five per cent, upon the premiums, and also a commission from the underwritten Upon adjustments. But when there have been doubts of the solvency of the broker, there have been frequent instances of the assured’s adjusting and collecting the loss due on his own policy. With this routine the plaintiffs were acquainted, as they formerly had been insurance brokers.
    It was further in evidence, that the plaintiffs delivered to Munro, the deceased partner of Gordon, the policy in question, for the purpose of procuring an adjustment, which he accomplished on the day, and in the words before set forth. That on the 6th January, Munro & Gordon charged the defendants, and credited the plaintiffs, with the amount of the loss. That at this time, more than the loss thus adjusted was due to Munro & Gordon, by tbe plaintiffs, who nevertheless were under responsibilities for them. That on the 9th of January, Munro & Gordon failed, and on the 11th, the plaintiffs called on the insolvents for their policy, and afterwards became liable on their responsibilities, and so were at the time of action brought to an amount beyond the sum in question That the defendants were, at the date of the adjustment, and still are, creditors of the bankrupts for a sum exceeding the amount of the loss. It was further testified by Gordon, that he supposed the plaintiffs informed of the adjustment at the time when made, but did not know that they were acquainted with the entry in the broker’s books.
    Upon these facts, a verdict was taken for the plaintiffs, for the amount of the adjustment and interest, subject to *the opinion of the court, whether it should stand, or judgment be entered for the defendants.
    In the case, the following paper was a part, and referred to in argument.
    .New York, April 20th, 1800.
    We the subscribers, underwriters in the city of New York, do agree to abide by, and conform to, the following rules for transacting business with the insurance brokers, from the 1st of May next ensuing.
    1. All losses shall be paid in thirty d'ays after a proof thereof is made and presented, of which proof the underwriter shall be the sole judge, so far as concerns the settlement with the broker.
    2.. The broker who rnay be indebted to the underwriter, at the time proof of loss is admitted, shall strike the balance due from him, ninety days prior thereto, which balance shall go towards the payment of the loss adjusted, and the residue, or full sum when no account shall exist, shall be paid by the underwriter, in a note at 30 days.
    3. The account with the brokers shall be settled and balanced half yearly, viz. on the first day of May, and the first day of November; and the underwriter shall have a right to demand the balance due to him. in a note payable in ninety days, subject only to a deduction of two per cent.
    4. All balances which shall be left on the first of May, by the underwriters, in the hands of the brokers, shall be applied to the payment of any loss that may afterwards accrue agreeably and consonant to rule 2.

      Hamilton, for the plaintiffs.
    The question is, whether there has been a payment of the loss adjusted. Thn there cannot have been. The utmost that can be shown hi, that the broker made a discount from what the assured owed him. But discount is no payment; and as payment here was, by the words of the adjustment, not to be made till 30 days, it is, perhaps, not consistent with good faith that it should be urged ; for prior to that period the broker was not at liberty to pay. Before that time the plaintiffs revoked the authority given to the broker, who is the mutual agent of both parties, and this they might have done according to the usual practice in cases of insolvency. Where a person is a kind of middle man, or an agent in *some degree from necessity, his acts cannot operate to the injury of either party.
    By adverting to the subsidiary facts stated in the agreement, made a part of the case, it will appear, that though in fact there might have been a debt due from the broker to the defendants, when the adjustment was settled, still it does not appear to have been such a debt as would constitute money in the broker’s hands.
    For this purpose, it must have been a balance-accrued and struck three months previous to the 2d January, 1802, even then the broker was not bound to pay till 30 days after. The entry in the broker’s books was a. mere mode of his keeping accounts ; for it appears from Gordon’s testimony, it did not give the assured any right of set-off against a note in the hands of the brokers. There is no case exactly like this in the books, but from Marshall, 203, it appears the English practice is like ours. If there is no superior legal right in the defendants, they ought not to prevail; for though the event must, from the bankruptcy of the brokers, throw a loss on some one, the equity of the plaintiffs' is equal to that of the defendants.

      Harison and Pendleton, contra.
    This question must be decided, not on cases, but on the principles of cases, and will rest on the course of proceedings, and the intention of the parties. The plaintiffs had been insurance brokers, and apprized of the mode of doing business between persons of that description. "With this knowledge the policy is put in the hands of Munro & Gordon to adjust and collect. At the time when it was made, the brokers must have had money in their hands belonging to the defendants, on a balance struck according to the agreement, for had it not been on such a balance, due 90 days before, the underwriter, according to the words of the contract with the brokers, would have given his note at 30 days. This shows the brokers were considered as the paymasters of the plaintiffs, for they knew of the adjustment, and, had they looked to the underwriter, would have asked for his note. The assured knew they, owed money to the broker, and the transaction bespeaks their consent that the loss should go to their credit. The equity of the parties, it would seem, is not equal; the entry of the debit being, aceord-ing *to Gordon, conclusive on the underwriter, and the .credit not binding on the underwritten. This looks like a sympathy for the friendly liabilities of the plaintiffs, become certain to be incurred only after the bankruptcy of Munro & Gordon, till when, the policy and adjustment remained quietly in their hands. Though the assured might not have been able to enforce payment till the end of 30 days, yet, as the brokers had money of the defendants in hand, there was nothing to prevent his paying, and the plaintiffs’ receiving. The credit passed to the insured is a proof of their consent that- it should beso; there is no evidence that they did not know it, and the presumption is strong that they did. The delivery of the policy to the brokers was an authority to adjust, and though this authority was revocable at first, it ceased to be so when a third person had acted upon the strength of it, and paid money over as the defendants have done; for they are concluded by the entry in the broker’s books. The charge of commissions to each party, evinces the transaction consummated by an actual payment from one man, carried to •the credit of another. Even at the end of thirty days after the adjustment, the plaintiffs are not said not to have been indebted to the brokers. Besides, the policy was to be cancelled.
    IlamiUon, in reply.
    The general acquaintance with the brokers’ mode of doing business, does not affect the plaintiffs with knowledge of this particular transaction. He could not have known there was money in the broker’s hands on a balance struck ninety days before. It is not even plain that the'adjustment was communicated, still less that the entry to his credit was known, for it was not given till the sixth, whereas the adjustment was on the second, so that notice of the adjustment could not be notice of the crediting. The endorsement only led the assured to imagine himself secure of his money at the end of thirty days. Till then, therefore, the act was not consummated, the policy liable to be taken back, and the power to receive the loss necessarily revoked. The argument from not demanding the note is begging the question, for it supposes a knowledge of the credit given. Till the-end of thirty days, the broker had no right over the defendants’ funds, and therefore *no appropriation before that period could legally be made. The entry, therefore, must have been conditional, and before its completion, the policy ■was withdrawn. Cancelling it was only for the purpose of giving an action on the adjustment. When that is made, the old contract on the instrument dies, and a new one arises. Though even then it might' be retained for any lien, as that would attach on the adjustment growing out of the insurance.
   Thompson, J.

delivered the opinion of the court. Tho •insurance brokers having become insolvent, and being indebted both to the plaintiffs and defendants, in a sum exceeding the amount now in question, a dead loss must’be •sustained either by the assured or by the underwriter. Both parties are, therefore, excusable in claiming the benefit of any strict principles of law, applicable to the case, that may operate in their favor. The determination of this question will depend on the relation in which the brokers may be considered as standing towards the respective parties. The agreement between the underwriters and brokers, as to the manner of transacting business, can no way affect the rights of the assured. The underwriters constitute the brokers their agents, to receive premiums; and the brokers agree, at the expiration of three months, to apply such premiums towards the payment of losses for which the underwriters become liable. The underwriters •may, therefore, be considered as looking to the brokers for the premiums. There does not, however, appear to be any general agreement, or understanding, between the brokers and assured, that tlie latter are to look to the former fox losses. Every case must, therefore, depend on its own circumstances. As a general rule, the underwriter, and not the broker, must be considered as debtor for the loss. The manner in which the brokers kept their accounts, was conformable to the agreement between them and the underwriters; hut this ought not to affect third persons. As between the brokers and the detendants, it may be considered as a payment of the loss by the latter to the former, but not as a payment to the assured, without their assent to such arrangement. No such assent appears — no evidence that the plaintiffs knew of the entry made in the broker’s books. But had they known it, we suppose it would not affect their claim against the defendants, unless they directly, *or impliedly, assented to look to the brokers, and not to the underwriters, for the loss. The policy being put into the hands of the brokers, authorized them to make the adjustment, and had it remained in their hands until the expiration of the thirty days, when, according to the terms of the adjustment, the loss was made payable, it might have been considered as an implied authority to receive the money. But the assured took the policy out of the hands of the brokers long before the expiration of the thirty days, and thereby revoked all the authority to receive payment which they might have been presumed to have had. The defendants cannot be presumed to have intended to make payment until the expiration of the thirty days. This entry was made in the broker’s books only four days after the 'adjustment; and so, cannot reasonably be considered, or' imagined, as a payment of this particular demand, but only for the purpose of keeping a general statement of accounts between the brokers and underwriters. We cannot discover any authority given by the plaintiffs to the brokers to receive payment of this loss, or any assent or agreement by the former to look to the latter for payment, and to discharge the underwriters from their liability. The opinion of the court therefore is, that the plaintiffs have judgment.

Livingston. J.

This is an attempt to recover from the underwriters, after a fair settlement, and what I deem equivalent to a payment by the insurance brokers, merely because the latter have since become insolvent. The policy was delivered for settlement by tlie plaintiffs tc Munro, one of the brokers who effected it. He tiras became their agent, and a receipt of the money by him would have discharged the underwriters. So, also, his other acts in relation to this business must be binding on'them. The first thing that Munroe does, is to obtain from the underwriters “an adjustment, payable in thirty days, which the brokers were requested to charge to their account, and to cancel the policy.” This was signed by the defendants on the 2d of January 1802. "We have no right to believe the plaintiff’s ignorant of the nature of this ad j ustment. Munro is dead, which renders proof of this fact difficult. But from their having been brokers themselves, and from the relation in which they stood to Mutuo in the transaction, it is a fair and natural *presumption, that they knew of this adjustment immediately. This knowledge would amount to but little short of a consent on their part to take the brokers as paymasters, if they were in funds, and willing to become so. It is admitted this was the case; for, only four days after, the bzx>-kers charged the defendants, who were their creditors, and credited the plaintiffs, who were their debtors, in their books, with the amount of this loss. This anticipation of payment might have been at the broker’s peril, but the plaintiffs had no right to complain. With this entry it is not certain the plaintiffs were acquainted, but being indebted to the brokers, they could not well object to it; and it is more than probable they were informed of it by the one who is since dead. I have chosen to consider this case without reference to any general agreement between brokers and underwriter’s, because I think there is sufficient evidence that the plaintiffs agreed to look to the broker, without any future recourse on the underwriters, and because having received payment by a credit with the brokers, whose debtors they were, it would be unjust to subject the defendants to any inconvenience on account of the subsequent bankruptcy of those gentlemen. I think, therefore, there should be judgment for the defendants.

Judgment for the plaintiffs.

         It lias been ruled that if an insurance broker, living at a distance from his principal, credit him for the amount of a loss on a policy, and receive from him the balance of his account, struck upon the allowance of such credit, the broker cannot, after a lapse of two years, recover from his principal the amount of subscriptions he has, from the subsequent insolvency of the underwriters, been unable to collect. Jameson v. Swainstone, 2 Camp. 546, n. So, if the broker himself pay the loss. Edgar v. Bumstead, 1 Camp. 411. where a broker retains a policy in his hands, lie is bound to uso reasonable diligence in procuring payment from the underwriters; if he do not, he is liable, in case of their insolvency. Bousfield v. Creswell, 2 Camp, 545.


author: Livingston, J.

text:
    Jackson, on the demise of Zimmerman, against Zimmerman and others.
    If a- testator deviso a specific quantity of land, out of a larger tract, and then describe the courses and distances to be run, if^ by stopping at one of the lines mentioned, the devise will fall short, it will be held that-the line was mentioned under the supposition that it would include the quantity devised, and the devisee will be entitled to have it run out that length. The erecting a fence, and showing it as a boundary, does not conclude the person so doing, if at the time such declarations are made that he is entitled to mere.
    This was a case submitted without argument. The lessor’s father gave him, by will, sixty acres of land, being part of a larger lot, and then described the tract devised, by certain courses and distances, one of the last of which was south six degrees, east six chains, or thereabouts. If this last line was to be only six chains, the lessor would not have sixty acres, but by extending it a few chains, be would have that quantity. Whether this line ought to be so extended, as with the other courses to include sixty acres, was the question.
   Livingston, J.

delivered the opinion of the court. It is evidently the testator’s intention to give his eldest son, the lessor of the plaintiff, exactly sixty acres of the lot from which they are to be taken; and he, no doubt, supposed that the courses *and distances given would have included that quantity; but lie seems at tbe same time to have been aware that it might not be the case, and for that reason, probably, makes use of the expression, so many chains, or thereabouts. It is the same as if he had first described the courses and distances, and then said, that this line should be six chains, or so long as to include, with the other courses and distances, sixty acres. In this way, full effect is given to the devisor’s intentions, without violating any rules for the construction of grants. But it is said by the defendant that the lessor, if he ever had a title, has destroyed it by his own acts; which are, his showing a certain line as the division line between himself and the defendants, and erecting a fence thereon, and this fence he showed to three witnesses, but to two of them he declared “ that by the will, he ought to have more land.” This conduct of the lessor cannot be regarded as a relinquishment of his rights, which, so far from being waived, are constantly asserted by him: although he might for the present be satisfied with the line on which the fence was placed, he would not in this way be deprived of lands, to which he might show a title, beyond that line; or even if, under a misconception of his rights, he had considered this line as his boundary, it did'not prevent his extending it according to the intent of the testator, whenever he should think proper. We are of opinion that the plaintiff is entitled to judgment.

Judgment for the plaintiff.


author: Kent, Ch. J.

text:
    R. and H. Stewart against Eden.
    Taking a note out of the bank, where it has boon lodged for oolleolion, is a sufficient consideration to support assumpsit against a third person, though the note he afterwards protested for non-payment A note given as a collateral security for a judgment recovered, cannot be impeached on account' of usury in the suit on which the judgment was obtained.
    Assumpsit on a special agreement to pay a promissory note drawn by Jolin Pelletreau, in favor of John Wardell, and by liim endorsed to tbe plaintiffs. Tlie note, on tbe promise to pay which the action was founded, had been *given as collateral security, for payment of an unsatisfied judgment, obtained on a note for a larger amount, of which tbe plaintiffs were bona fide holders made to Charles Brigden, on a.usurious consideration. The note thus given, and on tlie promise to pay which the present action was founded, had been lodged in the bank for collection. On tbe day it fell due, tlie defendant wrote to tbe plaintiffs, “that if they thought proper to oblige him by withdrawing the note from the bank, be would bold himself responsible to them to settle it in some satisfactory way, by tbe Wednesday following; but, as the note was lent to him, or for his use, unless it was withdrawn, lie could not consider himself liable for its payment.” In consequence of this letter, tbe plaintiffs did withdraw the note from the bank, made a due demand on the maker, gave regular notice of non-payment to tbe endorser, who had become a bankrupt, and also informed the defendant that they Lad withdrawn the note, from the bank, pursuant to his request, and looked to him for payment. On these facts, a case was made for tbe opinion of tbe court.
    Woods, for the defendant.
    I make three points : 1. That the promise was without consideration; 2. That the plaintiffs did not comply with the request on which it was founded ; 3. That the usury in the first note, on which the judgment was obtained, affected and destroyed the second, so that a promise to pay, founded on such a basis, was void. The two first objections speak for themselves: it could never have been intended that the note was to have been merely withdrawn, and then protested. On the third, the case of Walton and /Shelly is decisive.

      Hiker, contra.
    The withdrawing the note from the bank, on account of preserving the credit of the parties, was all that was asked. It was not required to exonerate the endorser. Forbearance is a good consideration. Mapes v. Sir Isaac Sidney, Cro. Jac. 683 ; Oro. Oar. 241 .

       Wherever there is a moral obligation to pay, it is sufficient for an assumpsit. Hawes et Use v. Sounders, Cowp. 294, per Lord Mansfield. As to the usury, it is settled that though a usurious note be void in the hands of a bona fide *holder, yet, a new security given to such a person, for the usurious note, is good. Guthbevt v. Haley, 8 D. & E. 390.

      Woods, in reply.
    If the original consideration is bad, a new security cannot make it good. A void consideration cannot be confirmed: the first note was void, nothing, therefore, can set it up.

       1 D. & E. 269. A bond given for the amount of certain notes: held, that in an action on the bond, an endorser on those notes could not be called to prove they were given on a usurious consideration.

        Cooks v. Douse, a promise to forbear for a little time, held good: but in Tolson v. Clerk, a promise to forbear for some time, ruled to be no con-^deration, no more than for a little time. Ibid. 438.

   Kent, Ch. J.

delivered the opinion of the court. We are satisfied there is no ground for the last objection, arising out of the original usury. The cases of Ellis v. Warnes, and Cuthbert v. Haley, are decisive authorities for the plaintiffs. The only questions are, whether here was a sufficient consideration for the promise, and whether the plaintiffs did withdraw the note agreeably to the intent, and according to the condition, of the promise. It is stated in the defendant’s lettewto the plaintiffs, that the note was lent to him, or for his use. By this, I understand him to say, that he was exclusively benefited by the money or credit raised by the original note, for to secure the payment of which- the one in question was given. He was, therefore, the cestui que trust, the real debtor who stood behind the parties to the transaction in their responsibility to the plaintiffs, lie was bound to indemnify them'for the sum the plaintiffs should recover; and if, instead of paymer through the medium of a third person, he came forward to assume directly the debt to the plaintiffs, he did no more than what he was under an equitable obligation to do. This is the only true and intelligible construction of the language in his letter, and the moral obligation he was under was a sufficient consideration for his promise. The condition that he annexed to his promise was literally complied with. The note was withdrawn from the bank ; and that is all that was requisite to bind him, considering he was under-the equitable obligation I have stated. We are not to look for the consideration of the promise, from the act of withdrawing the note. That perhaps, would not alone have created one, though considering the course of business and credit at the bank, the dishonor of a note, placed under the agency of the bank for collection, was a matter of real and serious consequence to the credit of the party; and much more so than if-it had happened without the purview of the bank. *We think it, however, sufficient for us to look' only to the literal fulfilment of the condition annexed to the promise, since we perceive a valid consideration'for the assumption without reference to that condition. We are of opinion, therefore, that the plaintiffs are entitled to reeover.

Judgment for the plaintiffs.

       In a snit on a bond to indemnify- the obligee for hia liability as makes of a promissory noto held by a third person, and to pay off such note, tho defendant cannot set up usury in the note. Churchill v. Hunt, 3 Denio, 321. "Where a usurious note had been transferred for a valuable consideration, and a new note given to an insolvent holder, held not to bo void. Kent v. Walton, 7 Wen. 256. A judgment in the hands of a Iona fide assigneo is not affected by usury between the original parties. Wardell v. Eden, 2 J. C. 258; S. C. 1 J. R. 531, note.


text:
    P. Coulon against Green and Lovett.
    If the agent of an insured give his own note with an endorser for the amount of the premium on a policy, and the assured pay to the agent the amount, deducting one per cent, per month for the time it has to run, and after this assign the policy, the assignee, after settling a total los3 witli the insurer, and paying the amount of the note thereout, cannot maintain an action on the money counts against the endorser, nor is the note impeachable on the score of usury. ,

    This was an action of assumpsit on tbe usual money counts.
    A verdict was taken for the plaintiff, subject to the opinion of the court, on the following facts:
    Joseph Coulon, being owner of goods shipped on board the ship Little Martha, on a voyage from Charleston to St. Sebastini, made application to Ealph B. Forbes, his agent at New York, to effect insurance thereon. The terms being agreed on, Joseph Coulon, without the knowledge of tbe defendants, paid to Forbes the amount of the premium, deducting therefrom at the rate of one per cent, per month for the time of credit given by the insurer for the premium, and the insurance was accordingly effected by Forbes, who instead of paying the premium in cash, gave bis note for .the amount, dated 6th October, 1800, payable nine months after date, and endorsed by the defendants in these words: “ Pay the Manhattan Company for the Columbian Insurance Company.” This endorsement was made for the accommodation of Forbes gratuitously, and with a kno wl edge in the defendants of the use intended to be made of the note, in securing the premium, and also without any Knowledge on the part of the plaintiff. The policy wás afterwards assigned by Joseph Coulon to the plaintiff. A loss of the goods insured happened, but the payment of it being contested, a suit was instituted, pending which the note became payable, was protested for non-payment, and due notice given to the defendants. Forbes was discharged under the bankrupt law.
    The policy contained the usual clause, that in ease of loss, the amount of the note for the premium, if unpaid; should be first deducted. The insurer agreed to pay the loss, but retained the amount of the premium, and paid *to the plaintiff the balance. The attorney for the plaintiff then gave the insurers a receipt in these words: “ Received, 1st April, 1802, of the Columbian Insurance Company, 19,600 dollars, in full, for a total loss on 20,000 dollars, cargo, &c., and I consent that the policy be cancelled.” The note given for the premium was then delivered by the insurers to the plaintiff, with this receipt: li Received of the plaintiff, assignee of Joseph Coulon, being deducted from loss of cargo,” &c.
    The insurers refusing to endorse the note to the plaintiff, the suit was brought to recover of the defendants the amount of the note.

         To create usury, there must be a loan and forbearance. The per cent-age taken in the text was not for forbearing, but for making an anticipated payment. Therefore, taking fifteen percent, for paying an acceptance before due, is not usury. Barclay v. Walmsley, 4 East, 55.

       Three things are necessary to create usury: a loan, taking more than lawful interest, a corrupt agreement Barth of Utica v Wager, 2 Cow. 712; Bank of Utica v. Smalley, 2 Cow. 770. See the eases as to what constitute» usury in New York Digest, vol. 4, p. 1333, et seq.

   Kent, Ch. J.

delivered the opinion of the court. The plaintiff sues on the ground of being assignee of Joseph Coulon’s policy, and we are therefore to consider the case as if Joseph Coulon was the plaintiff. If Joseph Coulon had made no payment to Forbes, there would then be no difficulty in the case, as the deduction made to the company of tjie premium, would have been what Joseph Cou*. fon was bound to do, for the premium was his proper debt. jj^"e do not think that the payment of Joseph Coulon to jforbes ought to alter the case, it being without the privity o;r knowledge of the defendants. All that the defendants intended to respond for, and all that in equity they ought tp be answerable for, was the premium due the insurers ; and they, knowing the object of the note, were presumed tp know that in case of loss, the fund coming to Joseph Coulon would, in the first instance, be liable for that pre? mium. Here was with them a fair calculation of eventual safety in one event, and, under that calculation, they endorse to accommodate the agent of Joseph. -They ought not, then, in justice, to be put in a worse situation by an arrangement between Forbes and Coulon, to which they were strangers. As, therefore, the suit is not upon the pote, in which as endorsers they might have been held to strict legal obligation by their endorsement, and in which the technical rules of law; would have prevailed, but as they are sued in a form of action in which the broad equity of the transaction is unfolded, we are of opinion they ought not to be liable.. "We put out of view the payment of Joseph Coulon to Forbes, and consider the dectaction *of the premium as a payment by Forbes of bis proper debt, and which was a just satisfaction of the note.

Postea to the defendants.

       See Ely v. Hallett, p. 58, note, and cases cited; and see N. T, Dig. val 3, p. 141.


author: Thompson, J.

text:
    Vandervoort and another against P. N. Smith, President of the Columbian Insurance Company.
    Where a policy is clear, certain, and unambiguous as to the voyage insured, propositions asking the rato of insurance for another voyage cannot be resorted to as representations to show the voyage insured was meant to be restricted to that described in the proposition. An application for a new trial on account of a discovery of testimony must show it to have been discovered since the trial. It is not sufficient to say it has been received since, for its not having been received might be urged as a reason for not trying A copy of proceedings in a foreign tribunal, certified undei the seal at arms of a foreign minister of the kingdom in which the tribunal exists, is not even prima facie evidence, unless it be made appear such minister has the official custody of such proceedings. All transactions from foreign languages must be on oath; one by a consul is of no more validity than by any other respectable person. Admissions in a case are conclusive against the party making them.
    Assumpsit on a policy of insurance, at a premium of 27 1-2 per cent, on tbe cargo of tbe schooner Pour sisters, “ at and from New York to two ports on the coast of Brazil."' The printed warranty respecting illicit trade was obliterated, but at tbe foot of tbe instrument the following clause was written: “ It is warranted, that the said vessel shall have •no contraband goods on board, tbat tbe assurers take all risks of seizure, for, or on account of, any illicit or prohi-ted trade, except risk of seizure in port, for or on account of, any illicit or prohibited trade.” The plaintiffs claimed a total loss, averring it to be in consequence of seizure off the mouth of the river Para, by armed vessels belonging to subjects of Portugal.
    At the trial, the subscription, interest, loss, due abandonment, and seizure by the Portuguese, at sea, off the mouth of the river Amazon, were admitted. It appeared that the voyage pursued had been from Rió Janeiro, on tbe coast of Brazil, to Para, on the same coast, but about two thousand miles north of Janeiro. The testimony of John Blagge (who was the projector of the expedition) evinced, that its object was to go to Bio Janeiro, and from thence to another port called St. Catharine’s, not more than a feti hours’ sail distant from the former. But this, he deposed, was not, to his knowledge, ever communicated to the defendant ; who, however, on his part, wished to prove that it was, and constituted a material representation, on which ¿he policy was effected. For this purpose he showed 'that the practice of the Columbian Insurance Company was to oblige the underwritten, on all occasions, to commit to paper their applications for insurance, to which written answers were returned. That, in the present case, the following communications passed between the parties : 1. “ What Will the premium be on-dollars, cargo, to be shipped ' on board a good and fast sailing schooner, with an experienced ^captain, at and from this to two ports on the coast of Brazil, (to clear for the Falkland Isles) at and from thence back again, and what will be the Outward premium only, the insurance to be against all risks? New York, 6th December, 1801. M. L. Vander-voort.& Co.” Answer. “Thirty-three and a half per cent, out and home; seventeen- and a half per cent, out only.” 2. “ N. B. One of the ports is where the vessel calls for her return cargo, and is about four or five hours Sail from the other. The schooner is the Four Sisters, Captain Barker.” Answer. “ Twenty-seven and a half per cent, out and home; fifteen per cent, out only.” 8. “ Seizure in port excepted. Warranted no contraband on board. The office take all risks of seizure, for, or on account of, any illicit or prohibited trade, seizure in port excepted, for, or on account of, any illicit or prohibited trade, 15,000 dollars wanted. The New York office have taken 25,000 dollars at twenty seven and a half, at the above clause. The olause in the policy respecting illicit trade, in articles contraband of war, erased before signing, warranted to have no contraband goods on board, the assurers to take all risks of seizure, for, or on account of, any illicit or prohibited trade, except the risk of seizure in port, for, or on account of, any illicit or prohibited trade.” Answer. “ Twenty seven and a half per cent, under the warranty last mentioned.” The defendant established, by several witnesses, that the difference of premium between a voyage to Rio Janeiro and another port within four or five hours’ sail, and a voyage to Rio Janeiro and Para, would be from five to six per cent. To the admission, however, of these written applications and answers, the counsel for the plaintiffs objected, as tending to explain away, by parol testimony, a contract reduced to writing; and the judge directed the jury, that the paper writings above mentioned (which, it appeared, had been in some measure reduced to form since effecting the policy) could not be considered as representations, or any part of the contract, but only suggestions, or propositions, leading to a contract, and therefore to be wholly laid out of view, except for the purpose of showing positive and actual fraud. Upon this charge, a verdict was rendered in favor of the plaintiffs, for a total loss.
    The defendant now moved to set this verdict *aside, and grant a new trial, on account of the misdirection of the judge, because the various paper writings were representations containing material facts which had not been complied with; 2. Because the vessel was actually seized in port; 3. Because the warranty against contraband goods had not been fulfilled; and, lastly, on account of newly discovered evidence.

      Bogert, for the defendant.
    The various propositions, as they have been termed, were, as we contend, representa; tions of the voyage to be insured. This voyage constituted the basis of our engagement. That performed was a different one. A representation is defined “ a collateral statement of facts, on which the “policy is to be effected, and may be by parol, or writing.” 1 Marsh. 134, 135, 137. It forms no part of the policy, but makes a part of the contract. If a material fact be omitted, the policy is avoided. M‘Dowai v. Frazer, Marsh. 338. The destination to Para was material, because it increased the risk, as is manifest from the difference of premium stated in the case. This, it is settled, ■is a conclusive circumstance to show the representation material. Pawson v. Watson, and Bize v. Fletcher, Dong. 13, Park, 204. It is true, after a representation the assured may change his intention, but then such change forms a new representation, which must be communicated, otherwise the original intention is presumed to continue, nay, must be pursued. Millar, 392, 401, 432. In the case before the court, the voyage described is not contradicted by the policy, and the representation ought to have been referred to, for the purpose of showing it had not been complied with. On the second point, though an admission be made at a trial, yet, if subsequent facts show that it was a mistake, it would be too rigid to tie the party down to his admission. It appears from the proceedings at Para, certified under the seal of the Portuguese minister, received since the trial, that the seizure was for illicit trade, and in the mouth of the river Amazon. This may be held to be in the port of Para, because of the trading which is carried on from the place where the seizure was made. The distance to which a port extends, is no reason for denying it the legal attributes of a port. Hargrave’s Tracts, 46. *And though the seizure was not for contraband, or illicit trade, yet, as the condemnation proceeded on that ground, it is sufficient to prevent a recovery. For, though there be no cause of seizure when a vessel is first seized, yet if any be afterwards discovered, she may be proceeded against on that.

      Harison and Hamilton, contra.
    It was proved on the trial that the propositions had been filled up in some points after the policy was underwritten. The practice, therefore, of the company is not entitled to much respect. The question is whether this thing, which is called a representation, is to contro the natural import of the words of a policy? By them the assured has it in his power to go to any tw<?

      ports at bis option. For be that is to do the first act, to determine the object, has invariably a right to elect. Co. Litt. 145. a. If so, and a clear explicit meaning appear on the face of the instrument, the settled rule is, that no paroi testimony, or evidence, aliunde, can be admitted to explain, contradict, control, or extend it. The general authorities to this point are, Gunnis v. Erhart, 1 Ií. Bl. 289. Meers v. Ansell,

       3 Wils. 275. Bull. N. P. 296, 297. Mease v. Mease, Cowp. 47.
      Heñíale v. Royal Ex. Jas. Go., 1 Ves. 317. Hare v. Sherwood, 3 Bro. Ch. Cas. 168. In Low-field v. Stoneham, 2 Stra. 1261, a devise was to “John Stoneham, and in case of his death, to his wife Susannah.” The devisee outlived the testator, and the defendant, his widow, offered parol evidence to show that the testator, when in extremis, declared he meant the husband should have only the interest, and that the principal, after his death, should go to her if she survived him. But the Chief Justice instantly overruled it. Where the law raises a collateral equity, this maybe rebutted by parol testimony But wherever a legal effect is fully established by the words used, such evidence cannot be received. Preston v. Merceau,

       2 Bl. 1249. So in Ricji v. Jackson,

       , 4 Bro. Oh. Cas. 514. But where it is resorted to merely to show the consideration of a deed, there it will be received. Filmer v. Gott, 7 Bro. Pari. Cas. 70. Rex v. Scammonden, 8 D. & E. 474. But the writings attempted to be referred to as representations cannot be received. They are mere propositions absorbed in the contract. 5 Yin. Abr tit. “ Contract,” let. Gr. *pl. 26. “ Whore a con tract is reduced into writing, all previous contracts are resolved into that,” Therefore, the definitive agreement, the policy, is to be the only guide. In that there is no ambiguity, either latent, or patent; and consequently, no pretext for recourse to extrinsic testimony. It is only to evince fraud that a representation can be resorted to. The new testimony, on which the arguments rest as to noncompliance with the warranty, and seizure in port, is nothing more than a copy from the office of the Portuguese minister, of a copy of the proceedings from Para, and amounts to nothing. The definition of a port, in the treatise of Lord Hale, de portubus marts, from Hargrave’s Tracts, is applicable to English ports, which take their rise from particular grants and customs, but not to the mouth of the river Amazon.

      Pendleton, Hoffman and Gaines, in reply.

      We admit the general rule as to the admissibility of parol testimony, against the words of a written contract. It does not, however, apply here: for the evidence adduced at the trial, and which the judge directed the jury to disregard, was not in contradiction of the policy, but perfectly consistent with it. Whenever parol testimony will stand with the words of the instrument, it is to be received. Therefore a representation of neutral goods will, though the policy be general, restrain it to such as are represented. So here, the representation being to two ports within four or five hours’ sail of each other, must restrain the insurance to two such ports as have been represented. As to the papers offered being mere propositions, every proposition for insurance, when acceded to, becomes a. representation, and, as such, is a part of the contract dehors the instrument. This is one characteristic difference between representations and warranties. For when the assured inserts in the policy that which he haa represented, it changes into a warranty. Each, however is a part of the contract, and each to be performed; the-one must be literally, the other may be virtually, complied with. If it was not a part of the contract, there could not be any necessity in the execution of that contract to show it had been fulfilled. As, then, this is to be established,, the representation must be referred to, as a test c f the acts done by the assured, in order to prove *a due performance. Therefore, in PawsonY. Watson, Pawson v. Ewer, and Bize v. Fletcher, it was resorted to, to determine whether the defendants had virtually complied with its contents. It follows, that a representation is in all cases admissible evidence to show the basis of the contract. It constitutes a part of the consideration bn which the defendant engages. The representation and the risk are correlative. When the representation is made, the risk is calculated, and on this risk the premium is founded. It thus becomes the essence of the engagement upon which the insurer undertakes, and falls within the very rule laid down by the opposite counsel, that recurrence may be had to parol testimony, to show the consideration of an instrument. It is equally within another of the positions taken against us. The plaintiffs admit we may refer to it for the purpose ef establishing fraud; we say, then, it was a fraud to state the voyage to be to two ports four or five hours' sail from each other, and then go to two, which are more than two thousand miles apart. The certified proceedings, under the seal of the Portuguese minister, are not offered as a conclusive admiralty sentence, but as evidence of the laws of Portugal, that the seizure was for trading contrary to them, and within a port of that kingdom. On these points, such a document is certainly strong testimony.

         That the verbal declarations of an auctioneer, at the time of sale, shall not be received in evidence against his printed proposals.

      5) An agrément in writing to exchange a copper mill, for the yearly grass m Whiteacre, parol evidence to show it was for the grass in Whiteacre and Blackacre refused.

       Agreement that an absolute bond was given as an indemnity, not tc be received in evidence.

         Parol evidence to prove an annuity was intended to be irredeemable, refused, no such covenant being in the deed.

       Parol testimony not admissible to prove an additional rent payable by a tenant beyond that expressed in the deed.

       Parol evidence not admissible to prove conversations before and at the time of sealing- a lease varying its effect.

       See New York Digest, (title, Evidence,) vcl 2, ch. 13, p. 999.

   Thompson, J.

delivered the opinion of the court. The great and important questions arising out of this Case are, whether the paper writing produced in evidence ought to be considered as a representation or not, or was admissible to explain the intention of the parties I have entertained very considerable doubts on the subject; and considering the importance of the case, as it respects the amount of property involved, and the very able and elaborate manner in which it was argued on both sides, it is with considerable diffidence that-I pronounce, the opinion, which, after much reflection and examination, I have formed, and in which the court concur. We think the writing in question cannot be deemed a representation ; neither was it admissible evidence to explain the intention of the parties to the contract. It could be received for no other purpose than to establish a fraud. A representation is de? fined tobe a collateral statement, *either by parol, or in writing, of such facts or circumstances relative to the proposed adventure, and not inserted in the policy, ,as are necessary for the information of the assurer, to enable him to form a just estimate of the risk. If the fact or circumstance appear on the face of the policy, it becomes a warranty and not a representation: it is essential, therefore, that it be of some matter out of, and collateral to, the contract, and makes no part of the policy. It cannot be said that this policy is silent on the subject of the ports to which this vessel was to sail; they are expressly made a part of the contract, and that, too, with all necessary legal certainty. She was to go to two ports on the coast of Brazil. Supposing there had been no evidence whatever offered of any communications between the parties, previous to the signing of the policy, would it have been void for uncertainty ? clearly not: the legal construction, in such a case, would have been to' two ports on the coast of Brazil, at the election of the assured. If the course ol the voyage,-then, be described in the policy with all necessary and legal certainty, this could not be considered a matter collateral to, and making no part of, the instrument. The writing offered to explain it could not, therefore, be received as a representation, within the .rules ofla.w above laid down. This writing must, we think, be viewed in the light of a series of propositions made on the one side, and answers given on the other, leading to a contract to be consummated by the policy, and intended to serve as a memorandum, whereby to fill it up, and must fall within that very salutary rule of law, that where an agreement is reduced to writing, all previous treaties are resolved into that. To admit a loose and almost unintelligible memorandum, which appears to have undergone.some alterations even since the commencement of this very action, in any manner to control the policy, appears to us to lead to too great uncertainty, especially as it is stated in this case that several personal communications took place between the parties previous to the signing of the policy. There appears to be a substantial reason for giving, the latitude-contained in the policy. The parties contemplated an il: licit trade, and it was not certain the vessel- could enter the port she wished: it was therefore *left open, at the election of- the assured, according.to circumstances. It remains to be examined, whether this writing was competent testimony to explain the policy. It is well observed by Mr. Justiee Blackstone, in the case of Preston v. Merceau, that courts should be very.cautious in admitting any. evidence to supply or explain, written con-' tracts, and. that they never ought to be suffered so as-to contradict or explain away an explicit agreement. In the case of Meers v. Ansel, the court said, no parol evidence is admissible to substantially vary, alter or impugn a written agreement; neither is it admissible to abate or extend a deed. No ambiguity appears on the face of this policy ; the words arc intelligible, without any aid dehors the instrument. The testimony offered is calculated materially to alter and restrain the policy. As it now stands, the assured had undoubtedly a right to go to any two ports on the coast of Brazil, at their election. If the previous communication on the subject of the voyage is to control the policy, the assured would be restricted to two ports, within four or five hours’-sail of each other. This, considering the nature of the trade they were engaged in, might very materially affect, if not in a great measure defeat, the voyage ; so far as this writing would tend to establish fraud in the assured, the underwriters have had the benefit of it. It was for this purpose submitted to the jury, and their decision upon it ought, I think, to be final and conclusive. I see no marks of fraud to taint the contract: the deduction of the premium from 33 1-2 to 27 1-2 per cent, appears to have been occasioned by reason of the assured’s taking on themselves the risk of seizure in port. This, in a forced trade like the present, was a very great diminution of the risk to be borne by the underwriters.

The voyage contemplated by the assured might have been o Rio Janeiro, and St. Catharine’s, as stated by Mr. Blagge: still they might not wish to be restricted to those places; otherwise it is difficult to conceive why they were not inserted in the policy. They choose rather to have a discretion left them as to the ports, and to which the underwriters must have assented, by subscribing the policy in its present terms. James Watson, and the other witnesses who were examined respecting the premium do not say that 27 1-2 per *cent. was not an adequate premium for the voyage insured. They only spealc of a comparative difference of premium between two voyages, to neither of wbicb were the assured restricted by this policy. For it has not been pretended by the underwriters that they were bound to go either to Eio Janeiro or St. Catharine’s.

The argument of this case has been accompanied with a motion for a new trial, on the ground of the discovery of new testimony. The testimony alluded to is said to be a copy of the proceedings and condemnation at Para, against this vessel and cargo. In order to grant a new trial on this ground, it ought to appear that the testimony has been discovered since the last trial; or that no laches is imputable to the party, and that the testimony is material. In Ihe present case, there are numerous objections against granting the application. It does not appear from the affidavit, that this testimony has been discovered since the last trial, but only that it arrived in New York since that time. From the nature of the evidence, it must have been discovered as soon as the cause of the loss was known, and of course there must have been either a want of due diligence in procuring it, or, if sufficient reasons for the delay could have been shown, application ought to have been made to postpone the former trial. Independent of this circumstance) however, there are objections to the admis sibility of the testimony offered, it not being duly authen ticated. It purports to come through the secretary of state, for foreign affairs, of the kingdom of Porlugal. If if be, as he has contended, a regulation of the government of Portugal, that all judgments and decrees rendered at Para are transmitted to Lisbon, and registered in the department of state, that regulation should have been shown in some authentic way, and the document in question would then appear to come through the proper channel; and, if duly authenticated, might be competent prima facie evidence of what it contains. But nothing appears to show that such is the regulation of the mother country with her colony. This document cannot be considered an exemplification of a judgment. That should be under the great seal; this ia only under the seal of arms, of the secretary of state; neither is it a sworn copy of the original, and- it cannot be received as an office copy, it *not appearing that the secretary of state has officially the custody of'records of this description. The translation of this document from the Portuguese into the English language, ought to have been made on oath; interpreters are always sworn. The translation of a consul, not on oath, can have no greater validity than that of any other respectable man.' But, laying aside all objections as to the manner in which this document is authenticated, we do not consider it material testimony. The purposes for which it is offered are, 1. To show that this, vessel was seized in port, and sp, the loss not within the risks assumed by the underwriters; and, 2. That.she had on board contraband goods, contrary to the warranty of the assured.

In .answer to the first, it is expressly admitted in the case, that she was seized at sea, off‘the mouth of the river Amazon. -This admission ought to conclude the party on this point.

In answer- to the second, the warranty in the policy must.-be understood to relate to goods contraband of war, and not as against the laws of Portugal; for it was well understood between the parties, that the voyage insured was a- forced and illicit trade,, contrary to such laws. The contraband' goods mentioned, in the condemnation must have been understood to be so, in reference ■ only to the laws of, Portugal. The ground of the sentence is stated to be, because the captain advisedly, and deliberately precipitated himself into port to trade, and there by subjected himself .to .the penalty, of the law.of' the 18th March, 1605. The opinion of the court therefore ■ is, that a new trial ought .not to be-granted, and that the plaintiff have judgment on, thp-.verdi.ct.'of the jury.

Postea.-to- the- plaintiffs.-

       See Jackson v. Putnam, 1 Caines’ Rep. 358, and note there.

         In Bates v. Grabham,, 2 Salk. 444, a case is cited by Lord XIolt, as decided by Pemberton, Oh. J., that on an insurance .from Archangel to the Downs, and from thence to Leghorn, parol evidence was.admitted to show that it was agreed the voyage should not commence till the .ship came to such a place, and that the policy was avoided according to the terms of the parol agreement. But in Weston v. Emes, 1 Taun.. 117, this case was denied to be law, and the court decided, that parol evidence of what passed at th; time of effecting an insurance, is not admissible to restrain the effect of the policy.
      Where the terms of a policy are olear and explicit, the court will not heai any suggestion or proof of mistake; as that an insurance .on freight gen» rally, was intended to .cover freight earned.. Chereot v. Barker, 2 Johns Rep. 346.


text:
    Jackson, ex dem. Pell, against Prevost.
    Lauds descending between indictment and conviction are forfeited under the act of October, 1119, against persons adhering to the enemies of this state. If a man be known by the addition of junior to his name, an indictment against him, without that addition, is not conclusive that he was not the person indicted, if found by a special verdict that he was meant, it being matter of fact on which a collateral issue ought to be taken at the trial.
    This case was submitted without argument, and came before the court, on special verdict, containing substantially the following facts:
    Joshua Pell the elder, of the manor of Pelham, in the county of Westchester, yeoman, the father of the lessor of the plaintiff, was, in his lifetime, seised in fee of the premises in question; and, being so seised, he died on *the 31st day of July, 1781, leaving the lessor of the plaintiff his eldest son and heir at law. On the 10th day of November, 1780, at a court of general sessions of the peace, held for the county of Westchester, an indictment was found against Joshua Pell, of the manor of Pelham, in the county of Westchester, yeoman, under the act of the legislature of this state, passed the 22d of October, 1799, entitled “ An act for the forfeiture and' sale of the estates of persons who have adhered to the enemies of this state, and for declaring the sovereignty of the people of this state, in respect to all property within the same.” In October, 1782, judgment was pronounced against Joshua Pell, now, or late of the manor of Pelham, in the county of Westchester, yeoman, by default, he having been duly notified to appear and traverse the said indictment, pursuant to the directions of the act aforesaid. This judgment was signed on the 15th day of July, 1783: it was found Joshua Pell, the lessor cf the plaintiff, and not Joshua Pell the elder, was meant and intended by the said indictment and judgment; the lessor of the plaintiff always distinguishing himself as Joshua Pell, jan. The title of the state to the premises in question, was in due form of law conveyed to the defendant, on whom Joshua Pell, the lessor of the plaintiff, entered, after the death of the said Joliua Pell the elder, aud became seised thereof, as the law requires.
   Thompson, J.

delivered the opinion of the court. It is submitted to this court to determine whether, from the facts found by the special verdict, the plaintiff is entitled to recove!'? Two questions appear to present themselves': 1. AYhether the judgment must be considered as standing against Joshua Pell the elder, or against Joshua Pell the lessor of the plaintiff; and, 2. The legal operation of that judgment on the premises in question. We think the judgment must be considered as standing against the lessor of the plaintiff. It is expressly found, by the special verdict, that he was the person intended, and the only variance complained of is the omission of the addition of junior to his name. Notice was given, pursuant to the directions of the act, to appear and traverse the indictment; this was enough to put the *lessor of the plaintiff on inquiry. He should have appeared and traversed the indictment, and then made the objection. It is now too late. In the case of Jackson ex dem St. Croix, v. C. & I. Sands, decided in this court, in April term, 1801, proceedings under this statute were considered analogous to convictions by bill of attainder,'and with respect to the description of the persons convicted, were construed with more liberality than ordinary judicial proceedings; that the identity of the person attainted was matter of fact, triable in a collateral issue, and that an incomplete description of him was not fatal. The finding of the jury, therefore, in the present case, must be conclusive, as to the indemnity of the person. The next question, then, will be as to the operation of such judgment upon the premises in question. It appears that the lessor of the plaintiff derived his title by descent from his father, who died on the 31st day of July, 1801. The indictment was found in November, 1780, but judgment was not rendered until the year 1782. which was subsequent to the time when the lessor of the plaintiff acquired his title; and the act under which these proceedings were had, declares the forfeiture to attach upon all the estate which the person had at the time of conviction. By this conviction, then, the premises became forfeited, and the title to the same vested in the people of this state, which title has since been, iu due form of law, conveyed to the defendant. We are therefore of opinion that the defendant is entitled to judgment.

Judgment for the defendant.


author: Spencer, J.

text:
    C. and J. Seldon against Hickock.
    A sale of the proportion of one of joint owners of a cargo, with tho consent and advice of all the others, severs the tenancy in common, and the vendee may maintain trover for it against the other partners.
    Troven for five hundred bushels of Turk’s Island salt. The defendant and two-others were joint owners of a cargo of sixte.en hundred bushels of salt, one thousand only of which was that of Turk’s Island. The two other partners, being unable to pay their proportion of duties and charges, by the advice and eousent of the defendant, sold their shares to the plaintiffs. On a refusal to deliver, after payment made, the present action was brought, and a verdict having been found for the plaintiffs, the application was to set it aside, and order a nonsuit to be entered.

      Allen, for -the defendant.
    The plaintiffs and defendant wvere tenants in common, under the sale by the two former partners. “ If two have jointly, •by buying, a horse, or an ox, and the one sell to another his part of the said horse, or ox, the purchaser and the other 'shall possess suoli chattel in common.” Co. Lift. 299, b. Therefore, if a creditor take out execution against one partner, the vendee is tenant in common with the other. Heydon v. Heydon, 1 Salk. 392. So, every one deriving title under one partner. Fox v. Hanbury, Cowp. 445; Smith v. Stolces, 1 East, 363. The persons thus coming in, stand in.exactly the same situation as the person from •whom they claim ; and, therefore, cannot maintain trover against their other co-tenants in common. Esp. N. P. 586; ■1 D. & E. 658, Holiday v. Gamsell & White, and the authorities already cited.
    SPENCER, J. It is settled that one tenant in common cannot maintaiu trover against another, unless that other has destroyed the subject matter of the tenancy. See Co. Litt.. 200, a.; Burnadiston v. Chapman, Bull. N. P. 34, S. P. But I do not see how that principle will help you.

      Allen. The damages are excessive: it is in evidence there were only one thousand bushels of Turk’s Island salt on board. The sale was of one third of the interest, and the verdict is for five hundred and thirty bushels, which is more than half of the salt for which the action was instituted.

      Foot, contra.
    Without denying anything that has been said, the sale by and with the consent of all the partners severed the tenancy in common. The undivided third part became the separate right of the plaintiffs.
   Spencer, J.

delivered the opinion of the court. The defendant, with two others, (Lord and Sherman,) who were copartners, were tenants in common of the salt. One tenant in common cannot maintain trover- against his co-tenant, unless the thing holden in common be destroyed. In case of a sale by one, and a receipt of tbe money, an action for money bad and received will lie. In this case Lord and Sherman sold their share, being five hundred and thirty bushels, to the plaintiffs, with the assent of the defendant, and on his advice. He promised to deliver the plaintiffs that quantity, and received from them the proportion of the duties, chargeable to Lord and Sherman. This, then, was a valid sale, and severed the tenancy in common. The damages are not excessive. It does not appear that Turk’s Island salt *was of a value superior to the other, which was from the island of St. Thomas. The plaintiffs gave six and six pence per bushel, and have recovered only that amount, with interest. The verdict invades no principle of law or justice: we are, therefore, against the motion. The plaintiff however, must stipulate not to bring any other action for St. Thomas’s salt.

Postea to the plaintifPs.


author: SPENCER, J.

text:
    Graham against Cammann.
    A bill of exceptions does not lie to the charge of a judge of an inferior court: the remedy is by application for a new trial.
    IN error on a bill of exceptions tendered to the mayor of the city of New York, on a charge given by him to the jury, in an action brought by the now defendant, against the present plaintiff, for the non-delivery, in good order and condition, of a certain quantity of coffee at Amsterdam, according to his contract; the exception was, that “ the said Edward Livingston, Esq., mayor as aforesaid, did then and there declare and deliver his opinion to the jury aforesaid, that the said several matters so produced and proved as aforesaid, on the part of the defendant, were not sufficient to entitle him to the verdict of the said jury; that the burden of proof to account for the deficiency of the coffee delivered lay on the defendant; that it was incumbent on him to show explicitly that he did fulfil his contract, except as far as he was prevented by perils of the sea; that the defendant was bound, not only to show that there was a loss of the coffee, by the perils of the sea, but how much was lost by those perils, or to give some reasonable account of the quantity ; that it was in the power of the defendant to have put a hand on board the lighters which landed the coffee, to prevent any loss therein ; that ■the court was clearly of opinion there was a deficiency of proof on the part of the defendant, which charged him with • the loss, and with these directions left the same to the jury, to find for or against the said plaintiff.”
    The arguments of the counsel being all directed to the charge, whether it was proper or improper, it is unnecessary to detail them, as it was on another ground that the court rested their decision, which was delivered by
   SPENCER, J.

Without examining whether the charge of the mayor was ^correct or not, as respects the facts, it appears clearly to us that the plaintiff in error has mistaken his remedy. A bill of exceptions ought to be on some point of law, either in admitting or denying evidence, or a challenge, or some matter of law, arising upon a fact not denied, in which either party is overruled by the court. In the present case we can perceive no error in point of law in the charge given. The onus probandi of the loss of the coffee, as was stated to the jury, lay on the now plaintiff, and he was bound to show it lost by the perils of the sea, or to give some reasonable account; and although the facts might not warrant the conclusion that there was a deficiency of proof, yet the whole was referred to the jury. To have got rid of their finding, instead of a writ of error, there should have been application for a new trial, on the ground of its being a verdict against evidence. It is not for ns to say that such motion ought or ought not to have prevailed, but in the present case we cannot see that there has been error in point of law, and are therefore for judgment of affirmance.

Judgment affirmed.

       See Coles v. Coles, 15 J. R. 159; St. John v. Standring, 2 J. R, 468 Wilson v. Reed, 3 J. R. 175; Mersereau v. Norton, 15 J. R. 179.