author: Swift, Ch. J. Hosmer, J. Gouutj, J,

text:
    Hinman against Taylor :

      Hartford,

    November, 1817.
    in error.
    THIS was a proceeding under the statute of bastardy, (tit. 22.) in favour of the mother of a bastard child against the father, for its maintenance. The complaint was as follows : “ To Simeon Hart, Esq. a justice of the peace, for the county of Hartford, comes Nancy Taylor of Burlington in said county, and complaint makes, and gives said justice to understand, that she is a single woman, and now with child ; and that said child, which, when born, will be a bastard, was, on or about the 14th day of March last past, begotten of her body, by Joseph Hinman of Farmington in said county ; and prays said justice, that she may be examined under oath, and that process may issue against the said Joseph Hinman agreeably to the statute entitled ‘ an act concerning bastards and bastardy.’ Dated at Burlington, the 12th .day of December, 1815.

      Nancy Taylor.n

    The complainant immediately made oath, before justice Hart, to the fact stated in the complaint; and thereupon a warrant of the following tenour was issued : “ To Erastu.s Ferry of Burlington, an indifferent person; Greeting.

    « Whereas Nancy Taylor of Burlington in the county of Hartford, a single woman, hath this day made complaint and information on oath, to me, the subscribing authority, that she is now with child ,* and that at Farmington in said county, on or about the 14th day of March, last past, Joseph Hinman of Farmington in said county, did beget her with child, which, when born, will be a bastard :

      “ These are, therefore, by authority of the state of Connecticut, to command you to apprehend the said Joseph Hinman, and him have forthwith before some proper authority, that he may be examined relative to said complaint, and be dealt with according to law. You are, also, hereby commanded to summon and give notice to Jhnos Hinman, of said Farmington, to appear at such time and place as yon shall appoint, to defend the said Joseph, (the said Joseph being a minor under the age of twenty-one years,) if he see
      cause) lie being parent and natural guardian to said Joseph. Bonds for prosecution are given j and the state duty of thirty-four cents is paid hereon. Dated at Burlington, the 12th day of December, 1815. Giles Humphrey, of Burlington, recognized thirty dollars in due form of law. Simeon Hart, justice of the peace.”

      A proceed-fog under the statute of Bastardy for maintenance of the child, is a civil suit; and the plaintiff, if an infant, must sue by guardian, of prockein ümy ¡ otherwise it is ground of abatement,

      In pursuance of this warrant, Joseph Hinman was arrested, and brought before Mraham Pettibone, Esq. a justice of the peace. After a hearing, on the plea of not guilty, the justice adjudged, “ that the said Joseph Hinman should procure bonds, with surety, in the sum of 200 dollars, for his appearance before the county court, to be holden at Hartford, within and for the county of Harford, on the fourth Tuesday of March [then] next, to answer to said complaint, and abide the doings of said court thereon j and that he stand committed until judgment be complied with.”
    In the county court, the following supplemental complaint was filed : “ Now, the said Nancy in court, supplementary to said complaint, alleges, that the child mentioned in said complaint was born on the 19th day of December, 1815, and is still alive j and that at the time of her travail, she was put to the discovery of the truth, and thereupon did then accuse the said Josepfc, of being the father of said child.
    By Cowls.”

    The defendant pleaded in abatement, 1. That the complainant is a minor, and does not prosecute by guardian, or next friend. 2. That the defendant is a minor j and that justice Pettibone, at the hearing before him, did not appoint any guardian for the defendant, to defend him in the suit ; nor did the defendant plead by guardian. 3. That the process was directed to, and served by, an indifferent person, without the oath prescribed by statute (tit. 95. c. 3. s. 2.) being taken by the complainant, or her agent.
    To this plea in abatement there was a demurrer $ and the court adjudged it insufficient.
    The defendant then demurred specially to the complaint and process, assigning, with other reasons which it is unnecessary to state, the same matters which had been pleaded in abatement. This demurrer was overruled; and the usual judgment for lying-in expenses, and for maintenance of the child, was rendered against the defendant.

      On a writ of error in the superior court, the judgment of the county court was affirmed ,* and thereupon the present writ of error was brought.

      Pitkin and Whitman, for the plaintiff in error,
    asserted, as a preliminary proposition, that this was a civil suit. First, ¾ is civil in its nature and object, it being an application to a court of justice to compel the father of the child to aid in its support. 1 Swift’s Syst. 209. Swift’s Ev. 88. 90. Reeve’s Bom. Rel. 278. Secondly, it is civil in its form and mode of proceeding. The plaintiff is not an informing officer, but a private individual; bonds for prosecution are given; the state duty on civil actions is paid ; the bond for appearance at court is taken to the adverse party ; amendments to the original and supplemental complaints are allowed, in the same manner, and on the same terms, as to the declaration in civil actions ; the defendant need not be arraigned, not appear in person, but may plead by attorney ; the trial is never by jury ; depositions are admissible; the cause of action may be extinguished by a release ; if the plaintiff fail, she is subjected to costs $ if she succeed, the judgment is enforced by execution, and not by warrant.
    They then contended, 1. That a minor cannot sue, except by guardian, or prochein amy. Co. Litt. 135. b. and note, 220. by Harg. Com. Big. tit. Pleader. (2 C 1.) 1 Black. Comm. 464. Reeve’s Bom. Rel. 264, 5. And if a mino? sue in any other manner, it may be pleaded in abatement. 1 Roll. Mr. 887. pi. S. 2 Saund. 212. a. and note (5) by Wins'. 2 Swift’s Syst. 200.
    2. That a minor cannot plead or defend in any suit fay attorney ; and if he do so, it will be error. 2 Saund. 212. a, and note (4) by Wms. and the authorities there cited. Com, Big. tit. Pleader. (2 C 2.) Reeve’s Bom. Rel. 267,8.
    3. That the process could not have been properly directed to, or served by, an indifferent person, without the party's taking the oath prescribed by the statute, tit. 95. c. 3. s. 2⅛
    T. S. Williams and Cowls, for the defendant in error,
    denied that this was a civil action. Though the object is to enforce obedience to a civil duty, vet the form of proceeding is criminal; and it is the form which determines the «juestion. The proceeding is upon complaint : and the process is forthwith; the defendant is brought before a court of inquiry ; and if probable ground of prosecutiom appears, he is bound over. All these are characteristics of a criminal prosecution. At any rate, the rule of the common law requiring an infant to sue by guardian, or prochein amy, is not applicable here ; for the only oeject of that rule, is, to give the defendant security for his costs, in case the plaintiff fails to recover ; but here the bond for prosecution affords that security in the most perfect manner. Besides, the warrant, in this proceeding, is issued only upon the oath of the complainant, after an inquiry by the magistrate; and then the issuing of the warrant is his act; so that there can be little danger of an indiscreet and vexatious prosecution.
   Swift, Ch. J.

A suit for the maintenance of a bastará child is a statutory process mi generis, partaking altogether of the nature of a civil, and not of a criminal suit. The general rules respecting civil cases are applicable to it. The plaintiff can withdraw, and is liable to cost if unsuccessful; the defendant may plead a discharge, appear by attorney, ánd be defaulted. Though the process is forthwith, as in Criminal cases, yet it resembles a criminal proceeding in nothing else. It can be prosecuted by an individual, without joining the state ; and no punishment whatever can be inflicted.

But it is said, that the suit is criminal, because the process is forthwith, as in criminal cases; and it has been contended for as a universal rule, without exception, that the form of the process, decides the character of the action. But I apprehend no authority can be found for this proposition; and that it is equally repugnant to reason and precedent. Suppose the legislature should authorize a forthwith process on a note of hand; no one will seriously pretend, that this would convert an action of assumpsit into a criminal suit. To constitute a criminal suit, some punishment must be inflicted in behalf of the state.

It is an unquestionable rule of the common law, that an infant must sue by guardian or next friend. There is nothing in the statute ofi. which this proceeding is founded, that alters the common law in this respect. The statute creates a right to commence and prosecute a civil suit; but the party must conform to the principles of the common law in carrying it on. As the plaintiff lias not sued by guardian or next friend» I am of opinion she cannot prosecute the suit; and that the judgment of the superior court be reversed.

Trumbcli, Edmond, Smith, Braixakd, Baldwrx and Goddard, Js. were of the same opinion.

Hosmer, J.

An infant, unless in certain excepted cases, must sue by prochien amy or guardian. Co. Litt. 135, b, note 220 by Barg. Reeve's Dorn. Rel. 264. Pechey v. Harrison, 1 Ld. Raymond, 232. Coin. Dig. tit. Pleader. (261.) That he should not sue alone, is both a disability and a privilege, agreeably to the remark of Sir William Hlackstone» when speaking of infants. Their very disabilities are privileges, in order to secure them from hurting themselves by their own improvident acts.” 1 Black. Comm. 464. Their supposed want of discretion, however, is not the only reason of their incompetency to sue. Infants are not liable to costs, at law, or in equity. Cooper’s Eq. Plead. 27. This presents a distinct ground of objection to their suits, in favour of those who might be harrassed by groundless prosecutions, and who, when successful in defence, would be without the remuneration of legal costs. An infant executor may sue with his co-executors ; in which event, the executors of full age may appoint an attorney for themselves and the infant, making together one representative. Foxwist & al. v. Tremaine, 2 Sound. 212. This is an exception to the general rule, for a reason extremely obvious ; et escceptio probat regutam.

The principal question in the case is, whether the suit was commenced and prosecuted, by an infant, without guardian or prochien amy. It has been contended, that the action on the statute oí bastardy, is not a civil, but a criminal suit; and, of consequence, that the state is prosecutor. In my opinion, this proposition is without the shadow of foundation. The process under the act is not cr iminal process ; the end of the law- is the redress of a civil injury; and if the proceedings to enforce the plaintiff’s right were precisely analogous to a public prosecution for a criminal offence, she could not prosecute in her own proper person.

1. The process in this case, under the act of bastardy, is not criminal process. It is a complaint subscribed by JYuv- cy Taylor. This is not the mode of prosecuting for a criminal offence ; but is in precise conformity to a bill in equity. The arrest of the defendant, and bringing him forthwith before the court, it must be admitted, is similar to the usual practice in criminal suits. From this, however, it can no more be inferred, that the process is of a criminal nature, than it would be, if the legislature, by statute, should authorize this mode of proceeding in the collection of a boob debt. The urgency of the ease fully justifies the law, without the supposition that the proceeding was prescribed for a public offender, or with a view to his punishment. , The criterion to ascertain a crime, is not the mere form of pro - cess, but the nature of the act or omission. If it be the violation of a public law, it is a crime or misdemeanour.

While the mind is intent on the features, which indicate the process, in the case before us, to be criminal, it is proper to attend to the various distinctive indicia of an opposite aspect. It is a suit by a plaintiff; on which a duty has been paid; bonds to the adverse party have been given; the defendant appears without arraignment, and by attorney; on both sides, depositions are admissible proof;, the plaintiff has the entire controul of the suit ; judgment is rendered as in other civil actions execution, issues in the ordinary civil form ; and if the plaintiff fails, the defendant is entitled to costs. These are the unequivocal marks of a civil suit, and too pointedly distinguish it from criminal process, to embarrass the mind with the least difficulty.

2. The end of. the law concerning bastardy, is the redress of a civil injury. This, with the preventive remedy for the protection of towns, constitutes the whole of it. The law provides for the maintenance of the bastard in aid of the mother. It requires security, by bond,, to shield the town where the child is born, from its support. Here is no public wrong to be redressed : no offender to be punished; but a sum of money for the infant's maintenance is all which the statute contemplates. An action for money had and received,, is no more the redress of a civil injury, thaira suit to obtain the benefit of this law. To this remark it may be superad-ded,thatthe manner of obtaining the object, is definitely pointed out. It is by suit, in behalf of the mother; or, if she omit to sue, or prosecute, in behalf of the town.

3. If the mode of proceeding to enforce the plaintiff’s 1 ight were precisely analogous to a public prosecution for a criminal offence, she could not sue in her proper person. In substance, it would be a civil action. Every reason which .-an be suggested for the suit of an infant by guardian or prochein a my, in any civil cause, either in behalf of the infant, or of the person prosecuted, would be applicable in this. It is an unwarrantable supposition, that the criterion to decide whether a suit be civil or criminal, is merely the form of process. It is well known, that by the English law, the affirmation of a quaker is not admissible in a criminal cause. Lord Mansfield, in Atcheson v. Everitt, Cowp. 383. says, No ease has been found in which it, (a quaker’s affirmation) has been refused, where the action, though in forma criminal action, in substance is a mere action between party and party.” An appeal of murder is a private suit between plaintiff and defendant; it is a private process for the punishment of a public crime. 4 Black. Comm. 313, 13, 14,15. But the testimony of a quaker by affirmation was rejected in such a case. Castell v. Bambridge & al. 2 Stra. 856. It was, to this purpose,” said Chief Justice Ray mond, <* a criminal proceeding.” It was determined in Rex v. Turner & al. 2 Stra. 1219., on a motion to quash an appointment of overseers, although the prosecution was mi the crown side, in the King’s name, that the affirmation of a quaker was admissible. These cases proceed manifestly on this ground, that not the form of proceeding, but the end of the suit, is to be regarded in the ascertainment of its real character. The court is not influenced by the superficies, but endeavours to penetrate to the core ; and when it discovers, that the object of a suit is the redress or prevention of individual injury, without any intermixture of public wrong, it considers it essentially as a civil action.

It is unnecessary to attend to the argument derived from the supposed analogy of our statute of bastardy, to the act of Elizabeth. There is no analogy. Although our statute, perhaps, would originally have authorized the mode of procedure in practice, under the English statute ; yet long usage sanctioned by the art of the legislature in 1784, (tit. 22. s. 3.) and the recent decision in Bennett v. Hall, 1 Conn. Rep. 417, have here established the practice of suing in the mother'* mame, and recovering judgment in her behalf, i have never been able to see why the decision just cited does not settle the question in the case before us.

in every view of the subject under discussion, 1 am of opinion, that in the judgment complained of there is manifest error.

Gouutj, J,

None of the objections to the judgment below appear to me to require consideration, except the first, via, that the complainant, being an infant, prosecuted without guardian, or next friend. But upon this point I think the judgment is erroneous. If» however, as my first impression was, the rule requiring infants to prosecute by guardian or next friend, were confined to civil suits, I should certainly be of opinion, that there was as little foundation for this exception as for the others. For I have no doubt, that this prosecution is strictly criminal. But, as it appears to be settled, that upon complaints of this kind, the defendant, if acquitted, is entitled to costs ; it follows, I think of course, and without reference to the character of the prosecution, that there must be some party or person upon the record, against whom the defendant may, in that event, have an execution, on which to levy them in pursuance of the judgment. For it would be a palpable absurdity, that a defendant should, in a given event,be entitled toa judgment for costs, where he could not demand an execution to enforce it. And I take the rule to be now established, that there is no case either at law or in equity, in which §uch an execution can issue against an infant plaintiff, or complainant. 2 Stra. 708.

I am aware, that according to this view of the question, it is not necessary to decide, whether the prosecution is civil or criminal. But as this has been made a leading point in the case, and as I cannot acquiesce in a position, w hich has been advanced, and which appears to me subversive of the only true distinction, between civil and criminal proceedings ; I will suggest my own thoughts upon the subject.

It has been said, that the prosecution is civil, because the object, or end to be obtained by it, is so. This is, perhaps, using language somew hat loosely. The end proposed is, indeed, not directly to punish the defendant, as an offender : nor, on the other hand, is it to remunerate the complainant, for any injury sustained. It is to secure the public or the town in which the child is settled, against the burden of' maintaining it$ against the consequences of an act,, which, by our law, is crimina]. And it bears a stronger resem - blance, perhaps, to a complaint exhibited by an individual to obtain surety for the peace, or good behaviour, than to any other proceeding known to the law : The object being in the one case to obtain security against the injurious consequences, and in the other against the commission of a crime. Hut not to dwell upon this topic, the proper answer to the argument I am now considering is, that the object, or end, of a legal prosecution is not the criterion by which to determine whether it is of a civil or criminal nature. It is the form of the proceeding, not the cause or object of it, that decides its character. This rule of distinction was laid down as the true criterion by Hooke, arguendo, and adopted by tiie court of King’s Bench, in Atcheson v. Everitt, Cowp. 382. : and it has never been denied or questioned. Now, the “form of the proceeding,” within the meaning of the rule, is regularly that of the process. Whatever, therefore, may be the end proposed by a legal prosecution of any kind, it is, to say the least, a general rule, and one to which I know of no exception, that the form or nature of the process is what characterizes the prosecution.

The case of Atcheson v. Everitt, was an action of debt upon the statute 2 Geo. 2. c. 24. against bribery. The object of the suit, and the sole object, was the recovery of a penalty, by way of punishment for a crime : It was, therefore, in the strictest sense, penal. Hut as the proceeding was in the form of a civil action, commenced and carried on by civil process, the court held clearly, that the prosecution itself was, for that reason, essentially civil. And every analogous case has conformed to this criterion. Wynne v. Middleton, 1 Wils. 125. 2 Stra. 1227. Calcraft v. Gibbs, 5 Term Rep. 19.

Some confusion has been occasioned in the discussion of the case, by an incidental observation of Lord Mansfield, upon the first argument in Atcheson v. Everitt, and before lie had formed any opinion, that actions for penalties are “ in form criminal,” though “ in substance, mere actions between party and party.” If the observation is literally inconsistent wit It the rule, as I have expressed it, it is equally so, with bis own final opinion, and that, of the whole, court, it appears, 1 confess, to reverse the distinction between form and substance. Hut this is of no moment. His meaning is perfect!} obvious, and the rule ultimately adopted in that case, by the whole court, and recognized in all the others, which I have-cited, is, that though the object and consequences of a prosecution may be exclusively criminal 5 yet the prosecution itself is, essentially and merely, civil, if the form of the proceeding is so: That is, the prosecution, in such cases, is civil, because it is in the form of a civil action ; or, in other words, because it is commenced and carried on by civil process. For if the defendant Everitt, had been prosecuted by indictment, or information, for the same offence ; the prosecution would, unquestionably, have been criminal, On the other hand, a prosecution commenced by criminal process, is, according to the same rule, for that very reason, a criminal proceeding j though if it were in the form of a civil action, it would be civil. This is the settled distinction, in prosecutions qui tarn. Hence a qui tarn action (i. e. a qui tarn suit by civil process,) is civil: a qui tarn information is criminal. And the characteristic distinction between them, is, merely, that the latter, (to use the language of Blackstone.») is carried on by a criminal, instead of a civil, process.” (4 Comm. 308.) Indeed, in ail prosecutions for penalties, if the recovery is sought by action, the proceeding is civil y if by information, it is criminal. This distinction Is undeniable- Now, to -apply the distinction : The present prosecution was commenced, as every other, on this statute, ■must be, by precisely the same process, as is issued upon indictments and informations, via. by a criminal capias, or-what we -usually term a forthwith process. The process can issue only upon complaint, made by the prosecutor, under oath; as in the cases of search-warrants-and ;complaints to obtain surety for the peace : it is returnable, not at a distant future day, as all writs in civil cases are, but immediately : the return Is made to a court of inquiry; a proceeding, known in criminal cases only. The defendant is entitled, by law, to no previous fixed term of rlj^ice, as defendants in all civil cases arc ; but may be required to make answer, instanter, upon being arrested and brought before the magistrate: he cannot be admitted to bail, by the officer who makes the arrest, us every defendant arrested in a civil action may be 5 nor can be be in any way ¿enlarged* pending the prosecution, except by the court or magistrate, and upon the same species of recognizance, as is required, exclusively, in criminal cases. If the court of enquiry find probable cause for prosecution, he is bound over, or committed for trial, as in cases of indictment or information ; and upon conviction, the judgment may be, and usually has been, a capiatur, under which he is to stand* committed, until the order of the court be complied with. Now, in no civil case whatever, is any one of these proceedings possible. It may be said, indeed, that the judgment is not necessarily a capiatur, it having been determined that the mere awarding of execution, as in civil actions, is legal. But, it ⅛ to be recollected, that the same course has been taken and sanctioned, for the collection of fines, inflicted upon informations filed by public prosecutors. It is sufficient for the purpose of the argument, that the judgment may be a capiatur.

Again, it is said, that bonds for prosecution are entered, and state duties paid upon all prosecutions of this-kind, and that amendments have been allowed in-them. Such, I admits has been the practice ; but the same practice in each of these particulars, has been adopted, in qui tam informations, which are confessedly criminal, and were expressly decided to be so by the superior court, in 1810, in the case of Meacham q. t. v. Beckwith, and afterwards by this Court, upon a writ of mandamus, to compel the judges of the common, pleas, to record the first verdict found in that case.

It is still further urged, that in prosecutions like tht present, the defendant may, in the common picas, appear and plead by attorney. But a defendant indicted for a new misdemeanor, may, and often does appear, and plead in the same manner, both in the English practice, and our own. 4 Black. Comm. 375. 1 M'Nall. 59.

Is there, then, in this case, a single feature of a civil suit i' It has not one characteristic property, or incident, which does not appertain to a criminal prosecution, It bears n» more resemblance to a civil action, than an indictment does,. It is, strictly, an information, accompanied with all the distinguishing forms and incidents of a criminal proceeding : and can, therefore, be no other, than a criminal prosecution.,

For reasons already given, however, I concur in the opinion, that the judgment ought to be reversed.

Judgment reversed',.


source: Caselaw Access Project

author: Swift, Ch. J. IIosmek, .1.

license: Public Domain

text:
    Riley and others against The Hartford Insurance Company.

      Hartford,

    November, 1817.

    Where a policy of insurance upon vessel and freight of goods, “ laden, or to be laden” contained a clause valuing the vessel at 8000 dollars, but leaving a Wank for the value of the freight, and the policy was underwritten for “ 8000 dollars on vesseland “ 2000 dollars on freight1:” It was held, that this was an open policy as to the freight.
    The construction of a policy of insurance on freight, though valued, is, that freight begun to be earned, either by the lading of goods to be transported,or by virtue of a contract of _ charter-party, shall not be defeated by any of the perils insured against; and‘ not, that the vessel shall take in a cax*go, the freight of which shall equal the sum insured, and then, that it shall not be lost. Therefore, where freight of goods, K laden or to be laden,” was insured, to the amount of 2000 dollars, on a voyage from New-Orleans to Gibraltar, with liberty to go to Cape de Verds for salt, and back to the United States ; the vessel arrived at Gibraltar, and delivered her outward cargo in safety ; with a part of the freight money, she purchased there 216 quarter-casks of wine, and took on freight for other persons 87 quarter-casks more; and then sailed for Cape de Verds, for the purpose of investing the residue in salt, but before her arrival there, she was wrecked and lost; it was held, that the insured were entitled to recover only the freight of the goods on board, though the freight money destined for the purchase of salt at Cape de Verds was sufficient to purchase, and the capacity of the vessel was sufficient to contain, a quantity of salt, the freight of which would exceed 2000 dollar*.
    TIIIS was an action on a policy of insurance, on the brig Commerce, on a voyage from New-Orleans to Gibraltar, with liberty to go to Malaga and the Cupe áe Verds, for salt, and back to her port of destination in the United States; ami “ upon freight of all kinds of lawful goods and merchandizes, laden, or to be laden, on board said vessel.” The policy contained the following clause: “ The said vessel, tackle, &c. for so much as concerns the assured, by agreement made between tee assured and assurers in this policy, are, and shall be valued at eight thousand dollars ; and the said goods and merchandizes hereby insured are valued at without any further account to be given by the assured to the assurers, or any of them, for the same.” At the close of the policy, immediately above the signature of the president, were these words :
    “ Eight thousand dollars on vessel.”
    “ Two thousand dollars on freight.”
    The Commerce, of which the plaintiffs were sole owners, sailed from New-Orleans for Gibraltar, with goods on board, estimated to be of the value of 6000 dollars, to be transported upon freight. She arrived at Gibraltar, in August, 1815, and there delivered her cargo in safety. With part of the freight money, the plaintiff’s purchased, at Gibraltar, 216 quarter-casks of wine j and the residue, being about 2000 dollars, remained on board the vessel. There were, also, shipped on freight by other persons, for the United States, 87 quarter-casks of wine. The freight of the wine was worth three dollars per quarter-cask. The money on hoard the vessel was to have been invested, at Cape de Verds, in salt, which was to have been transported thence to the United States ; but no contract was made for the salt. The vessel would have contained, in addition to the cargo on board, 6000 bushels j and the money on board was sufficient to purchase that quantity ; the freight of which, from Cape de Verds to the United Slates, would have been worth more than 2000 dollars. On the 23d of August, 1815, she sailed from Gibraltar, with her cargo, in pursuance of the voyage mentioned in the policy, for the Cape de Verds, intending thence to sail to the United States ; but was wrecked, on the 28th of the same month, on the coast of Africa, near Cape Bajador, and was totally lost, with all the cargo on board. The plaintiffs, on hearing of the loss, abandoned to the defendants the vessel and freight, and claimed for a total-loss on both. The defendants pajil.the amount insured on the vessel, but resisted the-4efettAows**u;laim as to freight.
    The case was reserved for the consideration and advice of the nine Judgeh.
    «TV. Smith and Trumbull for the plaintiffs,
    contended, 1. That this was a valued policy on frieght: which appeared, first, from the terms of the policy, the insurance being for 2000 dollars upon the freight of goods laden and to be laden ,* and, secondly, from the nature of the contract, the subject of it being, like profits, an interest in expectancy. Thompson v. Taylor, 6 Term. Rep. 478. cited as a case of a valued policy. 1 Marsh. Ins. 279. {Candy’s edit.) Mumford v. Hallett, 1 Johns. Rep. 433. in connection with Davy v. Hallett, 3 Caines 16. 21. Abbott v. Sebor, 3 Johns. Ca. 39.43, 4. Livingston v. The Columbian Insurance Company, 3 Johns. Rep. 49. 55.

    2. That if this were an open policy, still it covered the freight of the salt to be taken in at Cape de Verds, which, with the freight of the goods on board, would exceed 2000 dollars. Thompson v. Taylor, 6 Term Rep. 478. Montgomery v. Eggington, 3 Term Rep. 362. Horncastle v. Suart, 7 East 400. Mackenzie v. Shedden, 2 Campb. 431. The Insurance Company of Morth-Ameriea v. Jones and Clark, 2 Binn. 563.

      T. S. Williams and W. W. Ellsworth, for the defendants,
    denied, in the first place, that this was a valued policy, w ith. regard to freight, it not being in the usual form of such a policy. 1 Marsh. Ins. 288. (Candy’s udit.) The insurance, as it respects this subject, is simply “ 2000 dollars on freight.”
    But, in the next place, they contended, that whether the policy was to be considered as valued or open, the defendants were liable only for the freight, which the vessel had begun to earn, and was actually earning, at the time of the loss | and the subject of such freight must be either goods actually on board, or a contract by which the ship-owner, aside from the perils insured against, would be entitled to demand it. To this point they cited 1 Marsh. Ins. 92, 3. (Condy’s edit.) Forbes v. Cowie, 1 Camp. 520. Forbes v. dspinall, 13 East 323. They also adverted to the several cases cited by the plaintiffs’ counsel, and endeavoured to distinguish them from the present, ca^e.
   Swift, Ch. J.

It has been contended, that this was a valued policy for 2000 dollars on freight, because freight is of an uncertain nature, the profits of a voyage, and cannol be ascertained. But there is no resemblance in this respect, between freight and profits ; for freight is not only susceptible of being reduced to a certainty upon a valuation according to the well-known rate from place to place■ ; but the ship-owner, by a contract of charter-party, may entitle himself to a specific sum, while profits, from their very nature, are uncertain. It is evident, then, that the parties, if they please, can make a valued policy on freight. But in the present case, the policy, by the express terms, is open ; for it is for “ 2000 dollars on freight,” without any valuation,

v It is said, that the nature of the contract is, that the insurers engage that the assured shall not be prevented, by any of the perils insured against, from gaining the freight insured ; that when the risk is once commenced, and there is a loss within the policy, the assured are entitled to the whole. But on this principle, there may be an assurance of freight to any amount, and if the voyage is commenced, with a cargo of the most trifling value, and there should be a loss, the assured would be entitled to recover the whole sum insured. Such is not the nature of the contract. The construction is, that the assurers assure the sum mentioned on freight that shall once commence to be earned j not that the vessel shall take in a cargo, the freight of which shall equal the sum insured, and then, that it shall not be lost by any of the perils insured against. From the nature of the contract the freight must exist, by having a cargo on board the vessel before the policy can attach. Where such right to freight has commenced, there is something for the policy to operate upon, and the engagement is, that such freight shall not be defeated by any of the perils insured against. If it be necessary that freight must commence to be earned before the policy can attach, then it follows, that the insurance can operate only on such freight as actually exists, and cannot operate on the freight of a cargo expected to be laden on board the vessel; for it may as well be said, that the insurance may attach when no cargo is laden on board the vessel, as on a part of the cargo not laden : and it is agreed, that if no cargo is taken in, there can be no freight on which the policy can operate.

Such appears to be the true construction of the contract arising from the terms of it; and this is fully confirmed by ihe decision in the case of Forbes v. Aspinall, 13 East 323. The cases generally relied on by the plaintiffs, are w here the ship-owner, by the contract of charter-party, became entitled to the freight; if the voyage was not prevented by the perils insured against, and where there could be no doubt of his right to recover the whole sum on that ground.

But admitting the policy to be valued, then, on the principles adopted in the before mentioned case, the plaintiffs could not recover for any freight excepting on the goods actually t>n board the vessel at the time of the loss. For though the policy be valued, yet it has reference to freight on all the goods intended to be carried on the voyage insured : and if, by the perils insured against, a part only of the goods are lost, the assured can recover only in proportion $ for otherwise a large sum as freight, might be recovered for a very small cargo.

I am of opinion, that the plaintiffs are entitled to recover for a partial loss only.

IIosmek, .1.

The defendants insured the brig Commerce. against the common risks. They likewise underwrote “ upon the freight of all goods, laden or to he laden on hoard, ►nno dollars, from New-Orleans to Gibraltar, and back to the United States, with liberty to go to Malaga and the Cape de Verás.” She arrived at Gibraltar, purchased and shipped property the freight of which was short of 2000 dollars for the United States, and then sailed for the Cape to procure salt. Had it been obtained, the freight on the whole cargo would have equalled the stipulated amount. The brig was lost on her passage, and the plaintiffs demand 2000 dollars for the insurance upon freight. It is admitted that the freight which the brig was actually earning at the time of her loss, must be paid $ but the payment of any thing for the freight in expectancy on the intended cargo of salt, the defendants resist.

It has been much insisted on, that the policy on freight was valued. To enter into this enquiry, I deem it to be unnecessary. If the freight was valued, it was upon the mutual understanding, that there w ould be laden on board the brig, merchandise which would produce the stipulated profit. The valuation inserted in a policy is not ideal; it is in the nature of liquidated damages, to prevent the necessity of proving them, in the event of loss. 1 Marsh. 199. The policy is not conclusive as to the valuation agreed on ; it is prima facia evidence only of the amount of interest insured. 1 Marsh. 201. “ The valuation, (says Lord Ellenborough, Forbes v. Aspinall, 13 East 327.) in the case of goods, looks to all the goods intended to he loaded, and in the case of freight, it looks to the freight upon all the goods the ship is intended to carry upon the voyage insured : and if by the perils insured against in a valued policy on goods, part only of the goods intended to be covered be lost, the valuation must be opened, and the insured can only recover in respect of that part; and so, if by the perils insured against, the freight of part only of the goods to be carried be lost, the insured can only recover in respect of that, loss, according to the proportion which that part bears to the whole sum at which the entire freight was estimated in the valuation” Were not this principle adopted, the benefits derived from valuations in policies, would bear no comparison to the disadvantages to which they might, and would inevitably lead. Under the pretext of valued policies, these instruments ⅝ ould be the vehicle of wagers; and instead of indemnity from actual commercial risks, tir-y would become the accustomed inode of the most pernicious gambling. As the freight stipulated in tliis case, and the goods laden on board, bear no reasonable proportion to each other, the policy must be considered as open.

The only remaining question is, how far the plaintiffs’ right to freight had commenced. Co-extensive with this was his loss, and of consequence his right to indemnity.

Freight is sometimes applied to denote the compensation for the use of a ship, and sometimes, the compensation for the transportation of merchandise. The former happens, when there Is a charter-party of affreightment, or, as Is usually said, when the ship is let to freight. In this event, when the vessel is hired, so soon as the voyage is entered on, the right to freight commences. Let the ports of her destination be ever so numerous, if there is an entire freight for the performance of the whole voyage, there is an inchoate right to the sum agreed on for freight, so soon as the ship breaks ground. From this moment, the hire of the ship is at risk, and constitutes a legal subject of insurance. Although the charterer omits to put on board the expected merchandise, and the ship performs her voyage in ballast, the right to freight is perfected. The voyage, though divisible, is not in charter-parties usually divided. There is one voyage, consisting of destinations to several ports, and terminating at the place from whence the ship originally set sail. For this v*’’ age there is one freight due on its ultimate completion. This one freight is at risk so soon as the voyage has commenced; and an indemnity may be given against all the losses to which it may be exposed. Thompson v. Taylor, 6 Term. Rep. 478. Livingston v. The Columbian Insurance Company, 3 Johns. Rep. 49. Horncastle & al. v. Suart, 7 East 400. De Longuemere v. The Phoenix Insurance Company, 10 Johns. Rep. 127. De Longuemere v. The New-York Fire Insurance Company, 10 Johns. Rep. 201. Mackenzie v. Shedden, 2 Campb. 431.

The freight in the case before us, was not derivable from the hire of the brig, but from the transportation of merchandise by the ship-owner. To ascertain when the right to freight commenced, a different criterion is necessary, than in the instance before discussed. The right commences when the goods are put on board : or, at farthest, when a part have been i*e-ceived, and the vest are ready to be shipped. 1 Marsh. 192. 2 Stra. 1251. 3 Term Rep. 362. The underwriter docs not insure that the ship shall have freight* but only that the owner shall be indemnified for the loss of freight on goods I>wt on board. Forbes v. Cowie, 1 Campb. 520. It matters not, whether the ship-owner contemplates the purchase of S00^8 a* a given port on which to procure a freight, with money he has in possession, or which is due to him at the p]ace 0f destination, or on his personal credit. In either event, his right to freight cannot commence, until he has shipped on board the contemplated cargo.

The insured have a right to compensation for the loss of their brig, and of freight on the goods actually laden on board. Thus far an actual loss has happened $ and they are entitled to the stipulated indemnity, j

The other Judges were of the same opinion.

Judgment to be rendered for a partial loss | and the amount to be ascertained, pursuant to agreement of parties, by persons to be appointed for that purpose.


author: Swept, Oh. J. Gorxn, J.

text:
    Parsons against Ely and Parsons :
    in error.
    THIS was an action on the case against Enoch Parsons, Esq. Sheriff of Middlesex county, for an escape.
    in the writ the plaintiffs described themselves thus : “ David Ely and Samuel Parsons, both of the city and state of JVew-York, merchants in company under the firm of Ely ⅜* Parsons.” The defendant pleaded in abatement, first, that the plaintiffs were neither of them inhabitants of this state, and that they did not, when this writ was granted, give any security to prosecute their said action to effect, and answer all damages in case they should fail to make their plea good : secondly, that said writ was originally granted out, and re-i urnable to the city court, at the March term, 1818, and that after said writ was signed by Elijah Hubbard, Esq. justice of the peace, the following alterations were made therein, viz. the term of the court to which the writ was returnable, . was altered from April to May; the time of the alleged escape was altered from the 14th day of February, 1817, to the 25th day of Jlpril; and the date of the writ was altered from the 14th day of February to the 25th day of Jlpril which alterations, the plea averred, were made after said writ had been signed by said justice, and without his knowledge and authority, and that no security for prosecution was given after said alterations.

      the plain-⅛⅛&⅜⅜? return,after gignetj an(i issued, and ty to prose-" £ut® ha®gn wd^remS ⅞ security ⅛ necessary,
    abatement, 0,1 tlie, _ ground oi such .altera-in itself, and must shew, by a distinct and precise averment of facts, that security was necessary, at the time of granting the writ, and that the alteration v’as made under such circumstances as to avoid the security given,

      Hartford,

    June, 1818.
    The plaintiffs replied, that they did, by the recognizance of Minor Hotchkiss, Esq. a substantial inhabitant of this state, for the sum of 100 dollars, duly entered into before said justice, at the time when said writ was granted, give sufficient security to prosecute their action, as the law directs j and traversed the allegation in the first part of the plea, that the plaintiffs did not, when said writ was granted* give any security to prosecute, &c. To the second part of the plea the plaintiffs demurred.
    The court found the issue in fact for the plaintiffs, and decided that the second ground of abatement was insufficient. Final judgment being rendered for the plaintiffs, the defendant brought the present writ of error.

      C. Whittelsey, for the plaintiff in error,
    contended, 1. That the second part of the plea in abatement was sufficient. From the writ, which is part of the record, it appears, that the plaintiffs, at the time it issued, were not inhabitants of this state. Security for prosecution, then, became indispensable. Admitting such security to have been duly given, in the first instance, the material alterations in the writ and declaration, subsequently made, avoided it, and no inhabitant of this state was liable for costs, when the process was served.
    2. That the finding of the court on the first part of the plea, was inconsistent with the facts admitted in the second part, and was, therefore, bad. Bac. Mr. tit. Verdict. (T) (W). It has become a maxim in the law, that what the parties have agreed in pleading, shall be admitted, though the jury find otherwise. Bac. Mr. tit. Pleas and Pleadings.

      Staples, for the defendants in error,
    insisted, 1. That the plea in abatement was insufficient, because it did not aver, that the plaintiffs in the action were not inhabitants of this state, at the time the writ was granted. Dwight v. Wolcott,
      S Day 406. Jlinsworth v. Dyer ‡ al. 2 Root 202. It does not help the plea, that the plaintiffs describe themselves as of the city of JVew-York; because, in the first place, you cannot* in any case, help out a plea in abatement in this way, as it must be good of itself, and stand by its own strength; and in the next place, the plaintiffs, though of the city of JYew~Fork when the writ was drawn, might have been inhabitants of this state, when it was issued and served. Pleas in abatement are to be strictly construed, and must be certain to every intent. 1 Chitt. Plead. 445. Roberts v. Moon, 5 Term Rep. 487, 8. Wadsworth v. Woodford, l Day 28.
    2. That the facts stated in the second exception being insufficient as a ground of abatement, they arc of no avail as opposed (admitting them to be so) to the finding of the court on the first. On the whole record, there is still no ground of abatement. But even this topic of argument fails ; for there is, in truth, no inconsistency between the finding and the allegations demurred to.

       See Stat. Conn. tit. 6. c. 1. «, 1.

   Swept, Oh. J.

Every plea in abatement must be complete in itself, and must contain all the averments essential to shew, that the writ ought to abate# In all cases of attachment, or where the plaintiff lives out of the state, so that bonds are required by law, a material alteration, after the writ has been signed and issued, and while the bond continues necessary, will destroy the writ; for it will cease to be the writ on which the bond was taken ; and to permit such an alteration might subject the person giving the bond to responsibilities that he did not contemplate. An alteration in the date, or the court to which it is returnable, is material. But in this plea there is no allegation, that the plaintiffs were not inhabitants of this state ; so that it does not appear from the plea, that a bond for prosecution is necessary. The process, therefore, as appears from the plea, stands on the footing of a summons, in favour of an inhabitant of this state ; and in such cases it has been the immemorial usage for magistrates to sign writs in blank, and for the parties to fill them up in any proper manner. Of course, the alteration in the writ, alleged to have been made, could not affect its validity.

I am of opinion, that there is nothing erroneous in the judgment complained of.

Trumbuu,, EdmoNd, Smith, Brais arh and Peters, Js. were oí the same opinion.

Gorxn, J.

I fully concur in the opinion, that there is nothing in either of the errors assigned.

The first exception in the plea in abatement is negatived, by the finding; and there is no ground for contending, that that finding is invalidated, by the demurrer to the second. For if one plea, or head of exception, could, in any case, be aided, or the finding upon it be affected, by a demurrer to another ; the rule would have no application to the present question. For there is, plainly, no inconsistency between the finding, upon the first exception, and the allegations, demurred to, in the second : the only averment, material to this point, in the second exception, being, that no security for prosecution was given, after the alterations in the writ: whereas, the only fact, put in issue, and found upon the first, is, that security was given,(t when the writ was granted,” a fact, strictly consistent, with the former averment. Further : The objection, that the finding upon the issue in fact is repugnant to the admission, implied in the demurrer, is founded upon the assumption — wholly unfounded, I think— of the legal sufficiency of the allegations demurred to. For if they were insufficient, as the court below adjudged them to be; they do not stand admitted upon the record, as it respects this question : insufficient matter being never confessed by a demurrer, except for the purpose of argument; that is, for the purpose of deciding the question of its own sufficiency. Besides: the first exception, in the plea in abatement, is itself entirely defective. The allegation, regarding the residence of the plaintiffs, is only, that “ they are,” (i. e, at the time of pleading,) “ neither of Ibetn, inhabitants of tisis state not, that they %vere not such, at the time of the writ's issuing. Jt does not, therefore, appear, upon the record, that any bond for prosecution was, at that r.ime, necessary •. and if one afterwards became necessary, by a change of the residence of the plaintiffs, (and as the record stands, the fact must he taken to have been so;) that eould have been no cause of abatement, though a good ground for a motion to the court, that security should be entered, or the plaintiffs nonsuited. Indeed, the defect in this first exception, would be material, in any plea, even the most favoured. It must be so, therefore, a fortiori, in a plea in abatement.

But to this it is objected, that the plaintiffs arc described, in the writ, as being of New-York. That, however, can make no difference upon this point. It is but matter of description, and may have been a misdescription, which, if it had become necessary, might have been corrected by amendment. The objection may he brought to this plain test: would a plea, that the plaintiffs were described, in the writ, as of New-York, and that no security was given, have been sufficient l This will not be pretended. The statute is not, that security shall be given, when the plaintiff is described, not as an inhabitant of this state ; but when he is not such. What is decisive of the point, then, is, that to take advantage of the fact, that the plaintiffs resided abroad, at the commencement of the suit, it was indispensably necessary for the defendant, (notwittistanding the description, given of them, in the writ,) to plead the fact specially, in abatement. And if it was necessary to plead the fact, at all; it was, of course, necessary to alledge it, according to the strict rules of pleading in abatement.

As to the second exception. Alterations in writs, after the signing, and before any proceedings had upon them, occur in every day’s practice ; and are attended with much convenience, without producing, I believe, any mischief. No one doubts, that blank writs, filled up, after being signed, are regular. If they are not, probably two in four, oí all the w rils issued in the state, are void. The only fact, here stated, w hich has any semblance of materiality, is that of the writ’s having been altered, in its return, after the recognizance for prosecution was entered. But for aught that appears, the alteration took place, with the consent of the cognisor. If, however, it was made without his consent, and if that fart, would be material ; the defendant should have alleged it. For in pleas in abatement, it is required, not only that they contain the utmost certainty, precision, and technical accuracy : but. in general, that they even anticipate and exclude, what, according to the rules, that gov. ern other pleadings, it would be incumbent upon the adverse party, to reply.

I am clearly of opinion, that the judgment ought to be affirmed.

Hosmeb and Chapman, Js. gave no opinion, the former being related to one of the parties, and the latter not having heard the arguments of counsel.

Judgment affirmed.


author: Swift, Ch. J» Peters, J.

text:
    Ely and Parsons against Parsons.
    An order of the county-court, fixing the limits of the prison, and making the line of a street one of the boundaries, must be construed to mean thepractical line, in con-tradistinction to an «n'r line, specified in the laying out, or alteration S>f the street.
    THIS was an action against Enoch Parsons, Esq. sheriff of the county of Middlesex, for the escape of Josiah Williams from the limits of the prison.

      Williams, at the time of service of the writ, was standing on the steps of Nehemiah Hubbard’s store, on the west side of Main street, in the city of Middletown. The order of court fixing the limits of the prison, was passed in March, 1817, and was, so far as it affects this case, as follows: « The south-east corner of Mr. Plumbe’s store, thence northerly, by the west line of Main street, as far as Washington street; thence easterly, across the said Main street to the north west corner of Jacob Sebor’s land ; thence southerly, by the eastern line of said Main street, to the place of beginning, including the whole of Main street.” The plaintiffs, to prove where the west line of Main street was, offered in evidence a report of a committee of the common council of the city of Middletown, and a by-law passed thereon, in August, 1813, declaring that said west line was, and should be, as follows, viz. “ beginning at a point ten feet east from the north-east corner of the Washington hotel; thence in a straight line to a point five feet east from the dwelling-house of Samuel Wat-kinson, Esq.; thence in a straight line, which runs five inches east from the main body of the meeting-house to a stone marked H, being eight and a half feet from the southeast corner of the dwelling-house of Mrs. Mary Mansfield ; and thence in a straight line to the dwelling-house of William Flumbc, Esq.” To the admission of this evidence the defendant objected, contending that it was irrelevant and improper ; but the court admitted it.
    Hartford,
    June, 1818.
    It was agreed by the parties, that the store on the steps of which Williams was standing, had been built more than thirty-years ; and that there never had been any railing or fence before the steps, or by the sides, but that the steps and the ground on each side had always been open to the walls of the store, to be used by all persons as they had need.
    The defendant gave in evidence, a survey, to shew that the west line of Main street, as anciently established, run one link west of the east side of the steps on which Williams stood; and contended, that the place where he stood, was practically a part of Main street.
    The court found, that Williams was standing westward of the air line of Main street, as established by the common council, and stated in the survey 5 and thereupon decided, that the defendant was by law liable for his escape.
    The defendant moved for a new trial, on the ground, that the evidence offered was improperly admitted, and that the decision of the court was erroneous. The questions of law arising on this motion, were reserved in the usual manner.

      C. Whittelsey, in support of the motion,
    contended, 1. That the report of the committee and by-law of the common council were improperly received, because the proceedings were not conformable to that section of the city charter, which prescribes the mode of laying out new streets, and of altering or exchanging those already laid out. They were of no effect. The common council had no power to fix the line of the street in this way. Nor does the by-law afford any evidence, that the line designated was the ancient line of the street. It is a mere nullity.
    2. That the construction put upon the order of the county court fixing the limits of the prison, was erroneous. That order never could have meant by iS the west line of Main street,” an air line. Its object was not to entrap prisoners, but to confine them within certain palpable limits. The practical line of the street was undoubtedly intended ; and if so, there was no escape.

      Staples, contra,
    remarked, in tiie first place, that the only question before the court, on the trial, was a mere matter of fact, via. whether Williams, when this suit was brought, was within, or without, the limits of the prison. The “ line” mentioned in the order of the county court, must mean the line existing at the time, the order was passed. Now, admitting that the common council could not by a by-law, alter the line, the report of the committee, and the consequent by-law, were proper evidence, connected with other facts, to shew where the practical line was.
    2. That the “ line” mentioned in the order must mean the line established for the street, and not the line of particular buildings, or court-yards. The county court did not leave it in the power of individuals to enlarge or curtail the limits of the prison, as they might think proper to throw open, or enclose, a piece of land. Such a construction would render the limits forever uncertain $ and W'ould, indeed, lay a snare for prisoners.

         Sgp Stat, Conn, tit, 3-4. eh, 8. <s, M

   Swift, Ch. J»

I am of opinion, that the order of the county court establishing the liberties of the prison in Mid-dletown, is to be construed to extend to the practical line of the street, as it was used and travelled at the time of making the order, and so as to comprehend the whole of the street or highway between the houses, within the limits mentioned. Such was manifestly their intent. This w'ould establish well known, definite boundaries. It cannot be presumed, that the order referred to a survey, which had not been regarded in practice, and which would exclude part of the open street, and comprehend part of the houses : where the limits would be uncertain, to be decided by a subsequent admeasurement, and the judgment of a legal tribunal.

I am of opinion, therefore, that a new trial ought to be granted.

TRumbuii, Edmond, Smith, Brainakd and Gotjid, Js. were of the same opinion.

Peters, J.

The west line of Main street” is a boundary of the prison limits ; and, at the time of the escape alleged, the prisoner was without this line, as fixed by the city council, and a survey of the street as anciently established, but within it, as actually opened for thirty years. And the question is, what is intended by .Main street; technically, a highway, defined by Hues and limits, or, vulgarly, a public path ? When courts of record speak by record, of mailers of record, they use the language of the law, ahd not common parlance. Lines of highways are established by law, and are not as moveable as stores and fences. A line is the nearest distance between two points, and ex ri termini, is straight, unless the contrary is expressed. W hen the contrary is intended, the order follows visible monuments.

But it is said, that the practical line was intended ; as it was not the object to entrap prisoners, hut to confine them within palpable limits. The defendant was gaoler. lie was furnished with a copy of the order, and was bound to know, and to make known to his prisoners, the palpable limits thereby prescribed.*

But the complaint is not, that the court on the circuit judged wrong upon the evidence, but that they admitted improper evidence. I cannot say this of the act of the city council. The charter of the city, which is a public act, expressly empowers them to lay out new highways, streets, &c. or to alter those already laid out.” Wrere there any irregularity in their proceedings, it ought to appear in the motion. It does not appear in the recital.

But if the court erred in this, still, as it appears by the survey of Main street, as anciently established, given in evidence by the defendant, that the prisoner was without Main street, and consequently, without the limits of the prison, a new trial ought not to be granted.

HosmeR and Chapman, Js. gave no opinion, the former being related to one of the parties, and the latter not. having been in court when the case was argued.

New trial to he granted.


author: Swift, Ch. J. IIosmek, J.

text:
    Penfield against Savage.

      Hartford,

    June, 1818.
    An infant, being an in. habitant of a town within one probate district inherited from her deceased father real estate lying in another; and while she was residing with her mother in the former district, the court of probate in the latter, appointed a guardian to her, who, in that capacity, took her estate into his possession, and paid for her support down to a certain period, when be refused to pay for further supplies, offering, at the same time, to take her into his eus-todyandpro-vide for her himself. In an action of book-debt, against him, for necessaries subsequently furnished^ by the mother’s second husband, it was held, that the defend. ant was not liable: for if he was riot lawful guardian, one might be appointed, who could call the infant’s estate out of his hands ; and if he was lawful guardian, he was only compel-lable, by some proceeding adapted to the case, to apply the estate in his hands to. the infant’s support, and could not be subjected, in are action at lav/, as for his proper debt.
    THIS was an action of book-debt, to recover of the defendant, as the guardian of Betsey A. Sloper, the sum of 109 dollars, 84 cents, expended by the plaintiff for her support and education.
    The cause was tried at Haddam, December term, 1817, before Trumbull, Baldwin and Hosmer, Ja. on the general issue, closed to the court.

      James Sloper, a resident of Middletown, in September 1806, married Charlotte Haskell, an inhabitant of the same town. He lived with her there until the 20th of January 1807, when he went to sea, and died on the 21st of February following, leaving one child, Betsey A. Sloper, who was horn at Middletown, in the probate district of Middletown, in July 1807. Both the mother and daughter, since the birth of the latter, have constantly resided at Middletown, In July ‡811, Mrs. Sloper married Ilosea Penfield, the plaintiff, in whose family Betsey A. Sloper has since resided ; and the sum stated in the declaration has been expended by him, for her necessary clothing, board and schooling. James Sloper left real estate in Southington, in the probate district, of Farmington, inventoried at 3655 dollars, between two and three thousand dollars of which came into the hands of the defendant, as the guardian of Betsey A. Sloper. The defendant’s wife was the sister of James Sloper, and his nearest surviving relative. The appointment of the defendant as guardian, was made by the court of probate in Farmington district, and was as follows : “ At a court of probate, holder at Farmington, in the district of Farmington, on the 2d da; of September 1808 ; Caleb Savage is appointed guardian to Betsey A. Sloper, a minor belonging to said district. Bond taken, and on file.” The defendant paid the plaintiff for Betsey’s support down to the ¿1st of May 1814, and then requested the plaintiff and his wife to permit her to go with him, stating that he was ready and willing to take her into his custody, to take care of her, to support her, to put her to school, and to do his duty to her as guardian in all respects : but the plaintiff and his wife refused to part with her. The defendant then gave them notice, that he would not pay any thing for her support after that time. The plaintiff’s charges accrued subsequently, of which due notice was given to the defendant.
    Upon these facts the court gave judgment for the defendant | and the plaintiff moved for a new trial. The motion was reserved in the usual manner.

      E. Huntington, in support of the motion,
    stated, that the principal question in this case, was, whether the defendant was entitled to the custody of Betsey Ji, Slayer, lie contended, that the defendant was not legally constituted guardian 6f her person, as she never resided within the probate district of Farmington, and was not subject to the jurisdiction of the judge of that district. The appointment was coram nonjudice ; and being so, the finding to support the decree, as well as the decree itself, is void. The appointment being out of the case, the guardianship, which, at the age of this child, was, at once, that by nature, and for nurture, devolved on the mother. Co. Litt. 88. b. and n. 67. by Harg. 1 Black. Comin. 461. Reeve’s Dom. Rel. 320. Still, however, the defendant is to be regarded, and rendered liable, as guardian of Betsey .1. Slayer’s property, so far as he has made himself so by his acts. Having taken her property into his possession as guardian, he is precluded from disputing the situation which he has assumed. He cannot say that he is not in the situation in which he has acted. Peake’s Evid. 21.

      C, Whiitelsey, contra,
    was stopped by the Court.
   Swift, Ch. J.

In this case, the defendant is lawful guar dian to Betsey JI. Sloper, the infant, or not. If he is not the lawful guardian, then a guardian may be appointed, who can call out of his hands the estate of the infant, which lie lias received, and lie cannot be liable for her support. If he is now the lawful guardian, then this action cannot be sustained ; for a guardian is not bound to support his ward out of his own estate, and is not liable to an action in his personal capacity. It must be by some process, by which the guardian may be compelled to apply the estate of the ward for her support, and not by a suit at law against him as for his own proper debt.

IIosmek, J.

It lias been rontonded by the plaintiff, that the appointment of the defendant as guardian to Betsey Jl, Sloper was corum non judice, and void. If this were admitted, under what legal obligation would he be to provide for her ? 1 a ¡u of opinion, however, that he is her legal guardian. The fact conferring jurisdiction on the court, is the residence of the minor. The appointment by the judge of the district of Farmington, declares on its face, that “ Betsey Jl. Sloper is a minor belonging to said district.” This, in support of the appointment, is- conclusive. Every court of limited jurisdiction, has right to ascertain the facts requisite for the exercise of its jurisdiction. Betsey A. Sloper, if she pleases, may appeal from the appointment, and then the question of fact will be open. The truth of the fact found, cannot, collaterally, be the subject of enquiry.

The word guardian,” as used in the statute, is commensurate with the whole parental right and duty, and equiva-* lent to tutor et curator of the Roman law. 1 Black. Comm. 460. 1 Swift’s Syst. 212. The exception in behalf of fathers reserving to themselves their authority over the person, notwithstanding a guardian is appointed, shows the extent of the term when unrestrained.

The defendant, as legal guardian of Betsey Jl. Sloper, over both person and estate, demanded the possession of her person, and expressly declared, that he would pay nothing to the plaintiff for her support. Posterior to this, the supplies were made, on which the present action is founded. On what ground can there be implied a contract against the defendant ? He has never assented that these supplies should be made; but, virtually, has prohibited them.

I am clear, that a new trial ought not to be granted in this case.

The other Judges, were of the same opinion, except Chapman, J., who gave no opinion, having been absent when the case was argued.

New trial not to be granted.

      V) 1 &tat.\Conn. tit, 84. s. 1.


author: Swift, Ch. J. Hosmer, J.

text:
    Moseley against Lord.

      Hartford,

    June, 1818.
    THIS was an action of account, alleging that tiic defendant, being owner of the brig Diligence, lying in the harbour of Mew-London, and bound thence to the West-Indies, whereof Sylvester Pratt was master for the voyage, received of the plaintiff on board said brig two horses, to transport to the West-Indies, and there to sell and dispose of to the benefit both of the plaintiff and of the defendant, and to render to the plaintiff a reasonable account in the premises.
    The defendant pleaded, that he w as never bailiff and receiver ; and the cause was tried, on that issue, at Haddam, December term, 1817", before Trumbull, Baldwin and Hos-mer, Js.
    On the trial, it was admitted, that the defendant was the owner of the vessel, and that the horses were shipped on board of her, to be transported to the West-Indies, and there sold. To prove the terms of the contract between the parties, the plaintiff produced in evidence a bill of lading, given with the knowledge and assent of the defendant, the material parts of which are as follows : “ Shipped in good order and well conditioned, by Thomas Moseley of East-Haddam, in and upon the brig called the Diligence, whereof is master for this present voyage Sylvester Pratt, now in the harbour of Mew-London, and bound for the West-Indies, two horses [describing them] to be delivered in the like good order and well conditioned, at the aforesaid port of the West-Indies, (the danger of the seas, and mortality, excepted,) unto the master or his assigns, he or they paying freight for the said goods, one half of the nett proceeds of the sales of said horses, and ten dollars in addition thereto, with average accus - tomed. In witness whereof, the master of said brig hath affirmed, &c. Sylvester Pratt.” The defendant contended, that this instrument did not prove the contract alleged in the declaration : hut the court decided otherwise, and so instructed the jury. A verdict being given for the plaintiff, the defendant moved for a new trial, on the ground of a misdirection. This motion was reserved for the consideration and advice of tin» nine Judges.
    Where the master of a vessel received goods on hoard, and, with the assent of the owner, gave the shipper a bill of lading, by the terms of which the goods were to be transported to the West-Indies, and there “ delivered to the master, or his assigns, he or they paying freight for the same, one half the nett proceeds thereof,” &c. ; it was held, that the bill of lading thus given by the master, bound the owner, and that the latter became the consignee, as well as , the carrier, ofthe goods, and was accountable for them to the shipper.

      B. Huntington, in support of the motion,
    contended, that by the terms of the bill of lading, Sylvester Pratt, the master, was the consignee of the horses, and he only was accountable to the plaintiff’,

      C. Whittelsey, contra,
    insisted, that the bill of lading bound the defendant, as owner, to account! the horses having been received, transported and sold, by the master, in his character as master, and not in his individual capacity. Thé giving of a bill of lading to the shipper of property, being ■within the scope of the master’s general authority, it would bind the owner without an express assent; but here an express assent is found.
   Swift, Ch. J.

The master of a vessel is the agent of the owner 5 and his contract is binding on him in every tiling within the scope of his authority. His signing a bill of lading for goods shipped on board the vessel for the voyage, binds the owner, without any express assent; but in this case, it is agreed to have been done by his assent. It is then, clearly, as obligatory on him, as if signed by his own hand. By this act, the owner becomes the consignee, as well as the carrier, of the goods, and is accountable for them to the shipper. It would be a novel principle, that in the same contract, executed by the master, with the assent of the owner, there should be different responsibilities j and that the owner should be liable as carrier, and the master accountable as consignee.

Hosmer, J.

The only question in this case is, who was the consignee of the property ? If the defendant received it to transport to the West-Indies, there to dispose of, he is bailiff to the plaintiff. The property was consigned to “ the master or his assigns, he or they paying freight for the goods, one half the nett proceeds of said horses, and ten pounds in addition thereto.” Had the assignment been made to Sylvester Pratt as an individual, his charge of the property as master, would have terminated, on his reception of it as the consignee. L. M. J. 131. He, however, never was the consignee, unless as the representative of the defendant. A consignment to the master, ex vi termini, is a consignment to the owner. As master of the ship, lie becomes the person entrusted with the care and management of her, and is the owner’s servant and confidential agent. 1 Malloy, 341. Abbott, 77. The word master is a technical, relative term, not a designatio persome, and always implies a person representing and acting for another. The interests of the plaintiff, the defendant, and the master, in the case before us, all point to this explication of the word.

It follows as the result, that the defendant was bailiff to the plaintiff, and that he has neither fulfilled his contract, nor accounted.

The other Judges were of the same opinion, except Chapman, J. who gave no opinion, having been absent when the case was argued.

New trial not to be granted.


author: Swift, Ch. J, Hosmer, J. Goran, J.

text:
      Escopiniche against Stewart.

    of the nine Judges, (ante 262. 269.) at an adjourned term of the superior court, at Neiv-Haven, in Sprit 18Í8, before Trumbull, Baldío in and Hosmer, Js. A NEW trial was had in this cause, pursuant to the advice

    The case, as it then appeared, was as follows. The defendant shipped 39 casks and 60 bags of rice, taken from the British ship Ramilies, lying off the port of New-London, on board the plaintiff’s brig Hector, lying near the Ramilies, on a contract between the parties, that the plaintiff should transport this rice to the island of Bermuda, at a freight of three dollars per cask, and one dollar fifty cents per hag. The brig sailed on her voyage to Bermuda, and, after being two days out, was encountered with severe storms, which occasioned leaks in her ; and though she endeavoured to reach Bermuda, yet when she arrived in the latitude of that island, without reaching it, she put away for .Porto Rico. In the latitude of Porto Rico, at a considerable distance to the eastward, the vessel am! cargo were captured, by a British privateer, and carried into the island of Antigua, where she was condemned as prize of war; but the prize agent or owner of the privateer, on being informed that the rice was the property of the defendant, relinquished it, and delivered if. to Guy Richards, a passenger in the Hector. Richards, without authority from the defendant, and not being his agent, sold the rice, and remitted the proceeds to the defendant, at Bermuda, who received the same. The place of capture, as well as the island of Antigua, was further from Bermuda, than the distance between New-London and Bermuda. The plaintiff claimed, that he was entitled to recover freight in proportion to the voyage performed when the vessel bore away for Porto Rico, by reason of the defendant’s having received the proceeds of the rice ; such reception of the proceeds being equivalent to a voluntary reception of the rice, by the defendant, or his authorized agent. The defendant claimed, that it was the duty of the plaintiff, as master of the vessel, to keep the rice, and transport it to the place of its original destination 5 and that the defendant, under the circumstances of the case, was liable to pay no freight whatever. The court charged the jury, that the plaintiff was not entitled to recover. The jury found a verdict for the defendant accordingly ; and the plaintiff moved for a new trial, on the ground of a misdirection. The case was reserved in the usual manner.

      der him Goods ship~ ped on freight to ren- Cood~ sh~p~ ped on freight to part perforrnanc~ of the vov~ age, were carried to a different port, where they were taken, and sold,by a stranger, who remit~ ted the pro~ ceed~ t~the t~hipper: held, that the re~ ception of such pro~ ceeds,by th~ shipper, was not enuiva-lent to a vol~ Untary acceptance of the goods, liable for freight pro rata intineris peracti.

      Hartford,

    June, 1818.

      Staples, in support of the motion.
    JV*. Smith, contra.
   Swift, Ch. J,

Nothing but the voluntary acceptance of goods at an intermediate port, by the owner or his agent, will render him liable to pay a rateable freight in proportion to the part of the voyage performed. Such acceptance releases the master or owner of the ship from bis contract to carry the goods to the place of destination, and the law will imply a contract to pay rateable freight. But the reception of the money for which the goods sold, is not equivalent to a voluntary acceptance of the goods: for this amounts only to a ratification of the sale of the goods, and a consent to receive the money, in lieu of the claim for the goods, and a non-performance of the contract.

In the present case, the goods were taken and sold by a stranger, without any authority from the defendant; and on the avails being remitted to him, he consented to accept the money. He had no opportunity to require or waive the performance of the contract. He had a demand against the plaintiff, either for the goods, or for non-performance of the contract to deliver them at Bermuda. He had no option but to accept the money, or resort to his legal remedy. He was under no obligation to pay any freight. His acceptance of the money, then, could only operate as a waiver of his legal remedy: it could amount only to a ratification of the sale of the goods; it was a satisfaction of his demand against the defendant for his non-performance of his contract j it discharged any claim against him. But this can never be construed to imply a consent, on the part of the defendant, to makp a new contract, and to render himself liable to pay freight for a voyage which had never been performed, and for which he was not legally chargeable : for this would he giving a double effect to the acceptance of the money lbr ■which the goods were sold. It would not only release the plaintiff from a legal demand in favour of the defendant, but would create a new demand in favour of the plaintiff against the defendant.

These principles are not only warranted by reason and justice, but are fully established by the cases of Hunter v. Prinsep, 10 East 377. and Armroyd v. The Union Insurance Company, 3 Binn. 437.

Hosmer, J.

On principles of common law, the shipowner is not entitled to freight, until he has delivered hi» cargo pursuant to contract. If by reason of a tempest, or any other inevitable accident, he is compelled to seek an intermediate port, on his arrival there no freight is earned. The ship-owner, if he pleases, may transport his cargo to the destined port, and thus, by the performance of his engagement, earn the stipulated compensation. On the other hand, if the shipper demands his goods, and is the cause of their being carried no farther, he is bound to pay full freight.

By the marine law, if the shipper does not require his goods to be carried to the port of their original destination, but voluntai'ily accepts them at the intermediate port, he is obligated to pay freight pro rata itineris peracti. This is on the ground that a new contract Is implied from the aceep tancc of the goods, the freighter, by this act, having released the ship-owner from any obligation to transport them further. Escopiniche v. Stewart, 2 Conn. Rep. 262. Thus far the law is well settled.

The court is now urged to proceed a step further. The brig Elector, destined for Bermuda, was captured and carried into Antigua. The defendant was not at this island, nor hatf he any agent there. A Mr. Richards, witho ut any authority, received the articles belonging to the defendant, disposed of them, and remitted him the avails. It is now contended, that the reception of the avails by the defeiidantrratifies the contract of Richards by a species of retrospective confirmation, and furnishes ground to imply a new contract tp pay a reasonable freight. No case has been cited to authorize the principle contended for. Amidst this silence of decisions, in behalf of the plaintiff, it is said, that there is a strong analogy between thefacceptance of the goods by the freighter, and the reception of the avails from the self-constituted agent. I am of opinion that there is no analogy. He who voluntarily accepts his goods, before they have reached the port of destination, the ship-owner not having refused to transport them further, dispenses with the performance of his engagement.. With plausibility it may be urged, that it is not unreasonable be should pay freight in proportion to the benefit received. But the case before us presents very different features. The defendant had no opportunity of exercising any option relative to the transportation of his goods. They were, by the ship-owner, without the defendant’s participation or concurrence, abandoned to a stranger j the further transportation of them was virtually refused, and the freight voluntarily relinquished. After the sale of the cargo by Richards, and until long subsequent, there is no pretence for the assertion, that any freight was due to the plaintiff. By what legal fiction is this dormant claim resuscitated ? Implied contracts are those which reason and justice dictate. To infer from the mere reception of the avails by the defendant, that he contracted to pay freight, would be to give a language to that transaction, in opposition to the most obvious justice. It is too unreasonable to contend, that the defendant was obligated to renounce his property, or to receive it under the presumed contract, that ho would pay freight which had never been earned, but which had been voluntarily aban» doned.

Sufficient is it for the defendant, that there is neither precedent nor principle to authorize the plaintiff’s demand.

The opposite, however, has been frequently and correctly decided. Hunter v. Prinsep & al. 10 East 378. Scott v. Libby & al. 2 Johns. Rep. 336. Armroyd & al. v. The Union Insurance Company, 3 Binn. 437.

Goran, J.

As this case appeared before the Court, at the last term, it was within the rule in Luke v. Lyde ; but as the facts are now presented, it is clearly not a case of freight. Upon strict principle, it has always appeared to me very difficult, when the whole voyage is not performed, to vindicate the rule of pro rata freight, at all. At all events, the determination in Luke v. Lyde has carried that rule to its utmost limits : and even those limits do not include the present.ease. The allo wance of rateable freight in such eases, is founded, only, upon a voluntary acceptance of the goods, by the shipper, at the intermediate port, or what has been deemed equivalent to such an acceptance. Here, there has been neither. It is urged, however, that the receipt of the avails of the rice, by the defendant, was a ratification, by an assent subsequent, of the prior sale by Bicharásand f herc-io re, tantamount to a voluntary acceptance of the rice, at Antigua. But the receipt of the avails, under the circumstances of this case, could not, surely, amount to a ratification of the sale, to any other intent, than that of barring a recovery against the plaintiff, for his neglect to deliver the rice, at the place of destination. The receipt of the money produced by the sale, might be material and effectual to this purpose: upon the principle, that the owner of the goods shipped, after having received the price of them, has no right to demand the goods themselves, or any further compensation for them. But an acceptance, on which the ship-owner may found a claim to pro rata freight, is a transaction of a very different nature. And as to the case of Baillie v. Modigliani, (Park. Ins. 53.) it is sufficient to say, without commenting upon particulars, that, in the circumstances, tinder which the avails were received, .that case, as explained by Lord Ellenborough, (10 East, 392, 3.) is clearly distinguishable from the present. Here* the receipt, by the defendant, of the avails of the prior unauthorized sale, can, upon no principle, be construed into a dispensation with the performance of the residue of the voyage. Of course, no argument for pro rata freight, can be implied from the transaction.

The other Judges were of the same opinion, except Chai*, max, J. who was absent when the case was argued, and declined giving any opinion.

New trial not to be granted.