text:
    Isaac Moses, Adm’r, &c. and Thomas Percival, plaintiffs, v. The Sun Mutual Insurance Co. defendants.
    (Before Duer, Campbell, & Bosworth, J.J.)
    Oct. 11;
    30, 1852.
    The words of the general clause in a poficy of insurance do not cover all losses that may happen to the property insured during the pendency of the risks.
    They are restricted to losses of a similar nature, and resulting from similar causes as those speciaUy enumerated.
    Hence they do not cover a loss resulting from the consumption of cargo by the crew or passengers, or from a sale to defray the expenses of necessary repairs.
    It is the duty of the ship-owner to provide funds to meet all contingent necessary expenses at each port of destination, and if he fail to do so, he alone is responsible to the shipper for a loss resulting from his neglect.
    The sea-worthiness of the ship is a condition precedent to the attaching of the policy; hence some proof of its fulfilment must, in all cases, be given, in the first instance, by the assured. Its fulfilment is not a presumption of law casting the burden of proof upon the underwriter.
    Judgment of nonsuit affirmed with costs.
    Appeal from a judgment at special term, dismissing the complaint—heard upon a bill of exceptions.
    The action was on a valued policy of insurance upon goods on board the ship Mason, on a voyage from Philadelphia to San Francisco, and that the application of the evidence, the points raised, and the opinion of the court maybe properly understood, it is deemed proper to state the complaint m extenso. It is as follows:
    The complaint of the plaintiffs shows that, on the‘twentieth ' day of February, one thousand eight hundred and forty-nine, the above named Joseph Flemming, now deceased, was a merchant in the city of Philadelphia, using trade and commerce under the name and style of Flemming & Marshall, he being, in truth, the sole and only person composing said firm; that he, the said Flemming, and the above-named plaintiff, Thomas 0. Percival, were jointly interested in certain goods, wares, and merchandise, to wit, eight hundred and forty-six packages of merchandise of large value, to wit, of the value of twenty thousand dollars, and they, being such owners, did, on said day, ship and lade the same on hoard the good ship called the “ Mason,” then lying at anchor in the port of Philadelphia, and bound for San Francisco, in California."
    And the said plaintiffs further show, that they, the said Flemming and Percival, did thereupon, on the twenty-fourth day of February aforesaid, cause the said goods, wares, and merchandise to he duly insured by the defendants on the voyage aforesaid, at a premium of three per cent., paid to the defendants by the said Joseph Flemming and Thomas C. Percival on the said goods, which were for the purposes of such insurance valued at sixteen thousand dollars.
    And the plaintiffs further show, that in consideration of the sum of four hundred and eighty dollars, by the said plaintiffs paid to the said defendants, being said per centage, the said defendants did execute and deliver to the said Flemming, and Percival, a certain instrument in wilting, commonly called a policy of insurance, hearing date the twenty-fourth day of February, one thousand eight hundred and forty-nine, whereby the said defendants, in consideration of said sum of money so paid to them as aforesaid, being three per cent, on sixteen thousand dollars, the estimated value of said goods, wares, and merchandise, did insure the said joint owners of said goods, wares, and merchandise, under the name of Flemming & Marshall, on account of whom it might concern, loss payable to them, lost or not lost, at and from Philadelphia to San Francisco, with the privilege of intermediate ports, on merchandise as per memorandum on file in the office of said defendants (in case of claim for damage, the same to he settled on the principle of a salvage loss), laden or to be laden on hoard the good ship “ Mason.” Beginning the adventure upon the said goods, wares, and merchandise from, and immediately following,' the lading thereof on hoard of the said vessel, and so continue and endure until the said goods, wares, and merchandise should be safely landed at San Francisco, aforesaid, the said vessel in her voyage to have the right also to proceed and sail to, touch and stay at, any port or place, if thereunto obliged by stress of weather or other unavoidable accident, without prejudice to said insurance.
    And the said plaintiffs aver that the said, goods, wares, and merchandise, so laden on board said ship, and so insured as aforesaid, were therein valued at, and were of the value of sixteen thousand dollars. And the said plaintiffs further show, that the ad/oentures and perils which the said defendants took upon themsel/oes in that voyage, inn elation to said goods, wares, and merchandise, wear of the seas, men-of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of mark and countermark, surprisals, takings at sea, arrests, restraints, and detainments of all kings, princes, or people, of what nation, condition, or quality soever, barratry of the master and mariners, and all other perils, losses, and misfortunes that had or should come to the hurt, detriment, or damage of the said goods, wares, and merchandise, or any part thereof, d/uring said voyage; and in case of loss, it was agreed that such loss to be paid in thirty days after proof of loss and interest.
    And the said plaintiffs further show, that at the time of the shipment of said goods, and at the time of said insurance, and at the time of the loss hereinafter mentioned, the said Joseph Flemming, now deceased, and the said Thomas 0. Percival were the sole and only owners thereof; and they also aver, that since the malting of said insurance, the said Joseph Flemming has departed this life, having first previously made his last will and testament. Plaintiffs farther aver, that administration, with the will annexed, of all the goods and chattels of said Joseph, has been duly granted to the above-named Isaac Hoses, by the Surrogate of the city and county of New York, to whom the granting thereof belonged, by reason whereof the interest of said Joseph Flemming, deceased, in said goods, wares, and merchandise, is vested in the said Isaac Hoses as administrator, as aforesaid.
    And the plaintiffs further show, that the said ship “ Hason,” with said goods, wares, and merchandise, laden on board of her, did afterwards, to wit, on the twenty-fourth day'of February aforesaid, proceed and sail on said voyage so insured, being in all things seaworthy.
    And the said plaintiffs further show, that the said voyage insured, from Philadelphia to San Francisco, is a voyage of many thousand miles, mating it necessary to stop at many intermediate ports, for provisions and refreshments, and that Rio de Janeiro is one of such intermediate ports in said voyage, to which the privilege of said ship or vessel, touching and staying for the purposes aforesaid, extends.
    And the plaintiffs further show, that on her voyage, and before her arrival at said port of Rio de Janeiro, from the necessary contingencies growing out of so long a voyage, and the transition of said vessel through various climates, her provisions spoiled and failed; and to support the lives of the passengers and crew, and thereby enable said vessel to reach her final port in safety, it became necessary to consume and use, and there was consumed and used on board said vessel, a large portion of the provisions, goods, and merchandise of the said plaintiffs, so laden on board of said ship, on such adventure, and insured as aforesaid, and covered by said policy, being of great value, to wit, of the value of five thousand dollars, and which thereby, and by reason of the mere perils of the voyage aforesaid, and the seas, were totally lost to said plaintiffs.
    And the said plaintiffs further show, that it was necessary to refit and repair said vessel, and replenish her stores at said port of Rio de Janeiro, to enable her to reach her destination, and perform in safety said voyage, so insured as aforesaid, and that she was there so refitted and repaired as aforesaid. And that after said vessel had been so refitted and repaired, the agent of the owner of said ship refused to pay for the same, as he was bound to do, and that it thereby became necessary, to enable said vessel to proceed on said voyage, and on account of the great distance of the owners from said port, for the master of said vessel to sell and dispose, and he did sell and dispose of a large portion of the remaining goods, wares, and merchandise of said plaintiffs, of large value, to wit, of the value of other four thousand dollars, which became thereby totally lost to the said plaintiffs.

      And the said plaintiffs further show, that a certain other large portion of the goods, wares, and merchandise so shipped by them, and laden as aforesaid, on board said vessel on said voyage, and so insured by said defendants as aforesaid, amounting in value to other four thousand dollars, was entirely lost to the said plaintiffs by the barratry of the master and mariners of said vessel, during said voyage, and before she reached the port of her destination as aforesaid, San Francisco, where the same, by the terms of the bill of lading, were to have been delivered, and until which time they were insured by the defendants as aforesaid.
    And the plaintiffs further show,, that Valparaiso is another port in said voyage, and among the privileged ports to which said vessel was allowed by said policy to proceed, for necessary supplies, repairs, &c., during said voyage, which port is also a very distant port, being many thousand miles distant from the port of Philadelphia, as aforesaid. That said vessel repaired and refitted at said port; but that shortly after her departure therefrom, on her said voyage, her provisions were found to have become, from the climate, and other causes, unfit to sus- • tain life; and thereupon, while on the high seas, at a distance from all ports, and for the support of human life, and from the perils of the seas, the master of said vessel was compelled to use another large portion of the goods, wares, merchandise, and provisions-shipped as aforesaid, by said plaintiffs, on said voyage, and so insured as aforesaid, by said defendants, and covered by said policy. And the said plaintiffs aver, that said last mentioned goods, wares, and merchandise amount to the further sum of four thousand dollars, and were, by reason of the premises, totally lost to the said plaintiffs.
    And the said plaintiffs aver, that due proof of interest by the plaintiffs in said goods, wares, and merchandise, and of the loss aforesaid, was made to said defendants, pursuant to the terms of said policy, and although thirty days elapsed thereafter, and before the commencement of this suit, the said defendants did not pay the amount of said loss to the said plaintiffs, nor any part thereof, pursuant to the terms of the policy of insurance, and their obligation and undertaking as aforesaid.
    The said plaintiffs therefore say, that they have lost the said goods, wares, and merchandise by the perils aforesaid, and that the same amount in value to the sum of sixteen thousand dollars, which they demand herein, as their damages against the said defendants.
    The answer admitted the execution and contents of the policy, and put at issue all other material allegations in the complaint.
    The issues were tried before Mr. Justice Paine and a jury, in the month of February, 1852. The facts of the case, as established by the evidence, are as follows: The ship Mason with the goods insured on board, in which the interest of the" plaintiffs, as alleged in the complaint, was fully proved, sailed from Philadelphia on the voyage insured in the month of February, 1849. She had a full cargo, and more than 100 passengers.
    Before the ship had been more than nineteen days at sea the passengers and crew were put upon a half allowance of water, and before her arrival at Rio Janeiro certain articles, part of the goods insured, principally cheese and white sugar, were broached and supplied to the ship’s use, the necessity for such use arising from a deficiency in the stores properly belonging to the ship. After her arrival at Rio Janeiro the captain purchased some provisions and small stores, also a large quantity of ropes for overhauling and repairing- the rigging, and a quantity of canvas for the sails. The captain, having no funds of his own or of his owners to meet these disbursements, was under the necessity of selling cargo for that purpose, and accordingly sold among other articles a number of barrels of beef, pork, and hams, covered by the policy. During the voyage from Rio to Valparaiso, and also from Valparaiso to San Francisco, the ship’s stores again failed, and a large quantity of the provisions insured were from necessity used and consumed by the passengers and crew, several of the witnesses swearing that but for such use those on board must have starved. The whole amount of the losses thus occasioned which the plaintiffs desired to recover was stated to be $4,162 with interest from the time of presenting the preliminary proofs.
    The voyage from Philadelphia to San Francisco is in length 17,000 or 18,000 miles, and it was proved to be customary, and in most cases necessary, for vessels engaged, on the voyage to stop at the intermediate ports of Eio .and Valparaiso for refreshments and supplies.
    When the counsel for the plaintiffs rested their case the counsel for the defendants, upon the following grounds, moved for a non-suit. First—On the ground of the insufficiency of the preliminary proofs. Secondly—On the ground that, irrespective of the allegation of barratry, there was no ground of action for a loss by the perils insured against, set forth in the complaint, that the remedy for the alleged loss, if any, was against the ship and owners, and that no proof of barratry had been offered. And thirdly—That it had not been shown, that the vessel was seaworthy when she sailed, nor had she been kept seaworthy on the voyage; and that the' alleged loss was the direct consequence of such unseaworthiness. Fourthly—On the ground that there was a misjoinder of parties, plaintiffs in this suit.
    The judge thereupon ruled that the plaintiffs were not entitled to recover, and ordered a nonsuit.
    To which ruling the plaintiffs excepted.

      John Anthon, for the plaintiffs,
    in moving for a new trial upon the exception, made and argued the following points—
    . I. The preliminary proofs fully established the loss as averred in the complaint, and were sufficient, if such loss was - covered by the policy.
    H. The trade to San Francisco, being a' new trade, and peculiar in its character, and exposed to novel risks, calls for a liberal interpretation of the policy, and especially of the general clause, to embrace such risks.
    HI. The complaint avoids the difficulties which have arisen heretofore on the pleadings under that clause, by setting forth especially the precise character of the loss, in extenso.

    IV. The loss, as set forth in the complaint, is as follows:—
    I. A consumption, from necessity, by passengers and crew, of a part of the plaintiffs’ cargo (being provisions), to support life, and enable the ship to reach her destination; her provisions having spoiled and failed by passing through various climates, and from contingencies atténding a voyage of many thousand miles. *
    2. A sale, from necessity, of another portion of the plaintiffs’ cargo, to enable the master to refit and repair the vessel, and replenish her stores at a remote port, the agent of the owners having refused to pay for the same, and" such refitting and replenishing being necessary to enable her to reach her destination in safety.
    3. The loss of another portion of the plaintiffs’ cargo, insured, by the barratry of the master and mariners.
    4. That after her departure from an intermediate and distant port, where she had stopped to refit by permission in the policy, her provisions, from the influence of the climate, became unfit for the support of life, and another portion of the plaintiffs’ cargo, from necessity, and to preserve life, having been used by the vessel, thus making a further loss.
    V. These losses are within the perils insured against, and especially covered by the general clause, “all other perils, losses, &c.,” and were fully proved as laid.
    YI. The proper interpretation of that clause is still an open question, and although some English and American judges and authors have confined it to losses “ ejusdem generis” with those in the sentence preceding it in the policy, such construction is not authorized legally nor grammatically, and is at variance with the interpretation of all other commercial coun-tries.
    Vil. The clause is clearly cumulative, and embraces all risks of every kind or character not before expressed, and which might in any way attend the adventure. To confine it to losses “ ejusdem generis,” would obliterate it, inasmuch as a liberal interpretation of the preceding clause manifestly embraces such losses already.
    “ The extent and meaning of the general words, all other perils, &c.,’ has not yet been the immediate subject of any judicial construction in our courts of law.” Ld. Ellen-borough; Cullen v. Butler, 5 M. & S. 463 (1816).
    Where, besides the risks in a printed policy, there was a written clause “against all risks,” this was held to protect the insured from all losses, except such as might arise from the. fraudulent acts of the master. (Goix v. Knox, 1 John. Cases, 337; Skidmore v. Skidmore, 2 John. Cases, 76; Phil. Ins. (2d ed.) 688, 689.)
    General clauses are to he taken generally. They embrace all that can be comprised therein. A general provision is as effective in generals, as a special one in particulars. A general agreement is to be interpreted in its generality. The contracting parties are to impute to themselves the inconvenience of not having affixed any restrictions. These fules are taught by all our doctors. (Meredith’s Emerig. 48.)
    If the party who could and should have explained himself clearly and precisely has not done so, it is so much the worse for him, but he cannot be permitted subsequently to avail himself of restrictions which he has not expressed.
    To give more energy and extent to the clauses, it is added that the insurers place themselves in the very room and stead of the assured, as if there was no assurer; i. e. in case of loss the adventure shall be presumed to have been made for their account. (Meredith’s Emerig. 287.)
    “ Perils of the seas,” embrace every loss or damage which happens on the sea or through the sea. (Targa Pothier, lb.)
    It is only to prevent doubt and vain disputes, that in the printed form these clauses “ all other, &c.,” are inserted. (Ib.)
    Emerigon then gives extracts from the policies of various commercial countries, containing the clause “ all other, &c.,” in various forms, but all conveying the same meaning,-that the •intent is to 'cover any kind of loss to which the adventure is exposed. (Meredith’s Emer. p. 287.) A full chapter on this head.
    Yin. The practical application of the rule in England (so far as any rule has been applied there), while it purports to act upon the phrase, “ ejusdem generis,” does in fact conform to the extended interpretation of the clause as practised in other commercial countries.

      A Slower: Captain missed his Way to Jamaica, water failed, and slaves thrown overboard to save the lives of the remainder. A loss within the general clause. (Gregson v. Gilbert, 1 Park. 138; 23 Geo. 3.)

      A Slower: Failure of provisions occasioned by the unusual length of the voyage and bad and stormy weather, and consequent loss of slaves by death.
    This would have been a loss within the policy but for the stat. 30 Geo. 3. (Tatham v. Hodgson, 6 D. & E. 656.)
    A ship sunk at sea by another firing into her by mistake, deeming her an enemy, a loss within .the general clause “ all other, &c.” (Cullen v. Butler, 5 M. & S. 461.)
    To prevent money from falling into the hands of an enemy it was thrown overboard, held a loss of the nature of jettison, and within the general clause. (Butler v. Wildman, 3 B. & Ald. 398—1820.)
    Insurance on freight. Ship placed in dry dock for repairs, lost while being got out of dock, goods purchased but not shipped.
    It was insisted that the loss was not within the policy, that all other perils meant those cyusdem gm&ris, as perils of the seas, &e., and did not extend to losses in dry dock from ignorance of Hindoos.
    Tixdal, C. J.—'The words in the policy are very large; the policy not only enumerates perils of the seas, but “ all other perils, losses, and misfortunes.”
    The difficulty which has arisen on this clause has rather turned on the question whether such a loss was properly described in the declaration as a loss by the perils of the seas, than to any doubt as to its falling within the general terms of the policy. The difficulty here is avoided by the manner in which the loss is described. (Devaux v. L'Anson, 7 Scott, 507; S. C. 5 Bing. N. C. 519; Ann. 1839.)
    IX. The loss in this case is so set forth in the complaint as to give the plaintiffs the full benefit of the policy.
    X. If the eyusdem generis is the rule of interpretation, then the conduct of the passengers (a species of vis mayor), which the captain could not control, might be interpreted to be an embezzling of the cargo, and of the nature of barratry.
    XI. The question of seaworthiness was for the jury. On this head, independent of the general rule that seaworthiness is implied until the contrary is proved, the testimony of the mate was conclusive to show that she was seaworthy at her departure. The wasting of provisions and water by the passengers would be at the risk of the insurers.
    XTL The judge erred in taking the case from the jury.

      Swam Ketehwm, contra, insisted that none of the losses claimed were covered by the insurance, and that it was a necessary conclusion from the testimony that the ship was unseaworthy when she commenced her voyage.
   By the Court. Duer, J.

This is a very plain case. If we follow the established, and hitherto undoubted, construction of the policy, we are bound to say that it covers none of the losses for which an indemnity is now claimed, and that the learned judge who tried the cause would have committed a grave error had he refused to nonsuit the plaintiffs.

That the losses claimed cannot be referred to any of the particular risks which the policy enumerates is exceedingly clear, for the supposition, that they may be imputed to the barratry of the master and crew, we reject, as manifestly groundless. There is not the slightest proof of the embezzlement charged in the complaint, and it would be monstrous to say that the master was guilty of barratry in not withholding from the passengers the necessary means of preserving their lives. The barratry of the master is, according to the definition of Lord Ellen-borough in Earle v. Rowcroft (8 East. 139), a criminal breach of his duty towards his owners; and to apply the term criminal to the conduct of the master, in the case before us, would be an abuse of language and a perversion of truth. The consumption of the provisions of the assured by the passengers was a physical necessity: the permission of such use by the master a high moral obligation, and so far from being liable to censure, he would have been deeply culpable had he acted otherwise than he did. So, upon similar grounds, he was entirely justified in selling a portion of the goods at Eio de Janeiro. The sale was made to enable him to pay for supplies and stores that were indispensable to the further prosecution of the voyage. He was without funds or credit, and a sale of a part of the cargo was his only resource. Under these circumstances, to make the sale was not only a right, but a duty.

If the losses, then, as they appear in the evidence, are recoverable at all, they can only be so under the general clause, which follows in the policy the enumeration, of particular risks, and accordingly it was upon the construction that he urged us to give to the words of this clause that the learned counsel for the plaintiffs laid the stress of his argument. He insisted that they comprehend every loss, direct or consequential, that can possibly happen to the-subject insured, no matter from what cause, or by whose act, in port as well" as at sea, from the commencement until the termination of the voyage covered by the -policy.

Hor can it be denied, that if the words of the clause are separately considered, such is their obvious and, indeed, necessary construction. It is a construction, however, so directly opposed to that which courts of justice have hitherto followed, that it is scarcely possible to imagine a more radical and extensive change in the law of marine insurance than its adoption would effect. It is so far from being true that the liability of the underwriters is subject to no limitation, that there are numerous classes of losses from which, according to all the decisions and the text writers, they are wholly exeiqpt, although the words of the general clause, as construed by the counsel for the plaintiffs, certainly embrace them.

In determining the liability of the underwriters, no distinction is more fully established, or more frequently applied, than that between ordinary and extraordinary perils and losses. It is elementary. It is only for the latter description of losses that the insurer is liable. In the language of Mr. Justice Thompson in Barnewell v. Church, 1 Caines. 234, “ he undertakes only to indemnify against the extraordinary and unforeseen perils to which every ship is exposed in the course of the voyage.” Although to discriminate between ordinary and extraordinary losses is, in some cases, a matter of great nicety and difficulty, yet the cases are numerous in which the discrimination has been made, and has operated to defeat the claims of the assured.

Thus, if the masts and spars of the ship are damaged, or her sails torn or carried away, and even when in the course of the voyage she springs a leak, unless, in each case, the loss can be distinctly traced to the immediate and violent operation of a peril of the sea, it is considered as resulting from the ordinary wear and tear of the voyage, and the expense of repairing it is never a charge upon the underwriter (1 Emerigon, 390; Pothier, n. 66; 3 Kent’s Comm. 300; 1 Phillips, 625-6; 2 Arnould, 756-7 ; Benecke on Indemnity (Eng. ed.) 454-5-6).

There is another large class of losses, of very frequent occurrence, for which the law is settled, that the underwriter is not responsible. He is responsible only when the loss is occasioned by the operation of a cause, acting externally upon the subject insured; never when it arises solely from an internal and inherent principle of decay or corruption. Thus he is not responsible if fruit becomes rotten, or flour heated, or wine turns sour merely from internal decomposition, nor even when the property is destroyed by a spontaneous combustion arising from its own nature or accidental condition when laden (1 Phillips, 627-8; 2 Arnould, 756, § 282; 1 Emerigon, § 9: “ Du vice propre de la chose” pp. 388-392; Boyd v. Dubois, 3 Camp. 133).

So when there is no insurance against barratry eo nonrnie, it appears to be clearly settled that the underwriter is not liable for losses occasioned by the barratrous acts of the master or crew, such as the wilful violation of a blockade, or an unlawful resistance to a search (Harratt v. Wise, 9 B. & C. 712; Robinson v. Jones, 8 Mass. 536; 9 Cranch, 63; 1 Emerigon, 484; 1 Phillips, 589, 592). It has never been supposed or intimated that such losses are covered by the general clause in the policy. And even when barratry is an enumerated risk, the underwriter is not liable for a loss directly attributable to the negligence of the master or crew. It may be admitted that, according to the modern decisions, when a peril insured against is the froximate cause of the loss, it is no defence to the underwriter that the peril was itself occasioned by the negligence of the master or crew (2 Arnould, 767-769, and cases there collected). But these decisions, difficult as it maybe to reconcile them with former cases, have certainly not altered the law, when the negligence, and not an intervening peril, is the immediate cause of the loss (Tanner v. Bennett; Ry. v. Mood. 182; Bradford v. Leoy, 2 C. & P. 137; Bradhust v. Col. Ins. Co. 9 John. 17; Potter v. Suffolk Ins. Co. 2 Sumn. 197; 2 Arnould, 772; 1 Phillips, 589, 590).

It is not necessary to pursue the discussion. It conclusively follows from the observations we have made that the underwriter, by the fixed legal interpretation of his contract, is not bound to make good to the assured all losses, without reference to their character or causes, that may happen to the property insured during the pendency of the risks, and, consequently, that the general words, which, in their literal extent, embrace all such losses, must be understood in a restricted sense. What is the nature of the limitation to which they are subject is the question next to be considered.

Ror, in our judgment, can this be treated by us as an open question. It is settled by many decisions and by the consent of all the text writers of authority. The words of the general clause, broad as they are, in this, as in many analogous cases, are limited in their application by the specification that immediately precedes them, and therefore have their due effect assigned to them by allowing them to comprehend and cover only such other cases of marine damage as are of the like kind (ejusdem generis) with those specially enumerated, and are occasioned by similar causes. It is true that Lord Ellenborough said in the case of Cullen v. Butler (5 M. & Sel. 461), that in the courts of law a judicial construction had not yet been given to the general clause in the policy; but whether that observation was strictly accurate or not, it is certain that, in this very case, the construction which we have given was adopted by the court, and equally so that it has since been uniformly followed (1 Phillips, 2d ed. pp. 688-9; 2 Arnould, pp. 842, 399, 314). They are the very words of Lord Ellenborough that we have used in stating the rule.

That the losses which are now sought to be recovered are of the “ like nature, and were occasioned by similar causes” as those specially enumerated in the policy, was very faintly asserted upon the argument, and we are clear in the opinion that this necessary analogy wholly fails. If it exist, we have heen unable to discover it. The enumerated risks may be divided into two classes. They are either external causes acting with violence directly, or by a necessary consequence, upon the subject insured, or acts of illegality, malversation or fraud; and it seems manifest that to neither class can the losses now claimed be justly, or even, speciously, referred.

But it is not upon this reasoning alone that we rest our decision. As we intimated upon the argument, the exact question has been determined in England, and determined in favor of the underwriter. In the case of Powell v. Gudgeon (5 Maule and Sel. 431), in which it appeared that the master, from his inability to procure funds, had sold a part of the cargo to defray the necessary expenses of repairing the ship, it was held by the Court of King’s Bench that the underwriters were not responsible for the loss sustained by the shipper ; and in the case of Sarquay v. Hobson (4 Bing. 131; S. C. 1 B. & C. 7), this decision was approved and followed by the Court of Common Pleas. It is true that these cases apply in terms only to a part of the loss that is now demanded, but in principle they embrace the whole. Between a necessary sale by the master and a necessary consumption of the cargo by the passengers, we can make no distinction, nor was any attempted to be made by the ingenious counsel for the plaintiffs.

fSTor is this all: the reason for exempting the underwriters from liability, in the present case, are in reality much stronger than in either of those to which we have referred. In each of those cases the sale of cargo was made in a port of distress, and for the purpose of meeting the expenses of repairs, which had been rendered necessary by a peril insured against, and hence it was very plausibly argued that the sale was a necessary consequence of the peril, and that the underwriters were therefore liable for the loss which it occasioned; nor could any reply be made to this argument except that which was given by the court, namely: that the peril, although a remote, was not the proximate cause of the loss. In this case the sale was made— and the distinction is vital—not in a port of distress but of destination, nor can any peril covered by the policy be assigned as the cause, proximate or remote, of the necessity by which it was justified. The same remarks may'be applied to the consumption of the provisions by the passengers. This consumption, not in itself a peril covered by the policy, was assuredly not the consequence of any other. In both cases the loss is attributable to the same causes—a gross neglect of duty on the part, not of the master, but of the owners of the ship.

It is said by Hr. Arnould, the author of a recent and very able treatise on marine insurance, that the underwriter is discharged from all liability “ where the loss arises from causes which the owners or masters of a ship are bound by their duty as carriers to prevent, or which they might have prevented by a due exercise of reasonable and ordinary vigilance,” and the cases to which he refers fully sustain the doctrine and prove, that in such cases, the masters or ship owners are alone responsible for the loss sustained by a shipper (2 Arnould, 774-5).

We think it would be difficult to state or imagine a case to which this established and equitable doctrine is more strikingly applicable than to the present. It is doubtful, upon the evidence, whether any part of the loss was -sustained before the ship arrived at Rio de Janeiro; if any, it was a small and not distinguishable portion. The entire loss as proved, arose from the sale made by the master at Rio, and from the consumption of the provisions belonging to the assured during the voyage from Rio to Valparaiso and thence to San Francisco. Both Rio and Valparaiso were ports of destination; ports to which the vessel was bound when she left Philadelphia. They are also well known ports of naval equipment and supply, where all the necessary means for the prosecution of the voyage, without resorting at all for any purpose to the goods of the shippers, might readily have been obtained had the master been provided by his owners with the requisite funds or credit. The result is, that it is to the neglect of the owners of the ship to furnish the master with the necessary funds or credit that the entire loss is directly and plainly imputable. This neglect, however, was a manifest breach of the duty of the owners as carriers—of their duty to passengers and shippers. They are just as certainly bound by their contract of transportation to put the ship, in all respects, in a fit condition to prosecute the voyage at each intermediate port of destination as at the original port of departure. The decision of the Court of Errors in the American Insurance Company v. Ogden (20 Wendell, 287), appears to have settled the law in this state, that the ship owner is bound to furnish the master with funds or credit at a port of destination. If such is his duty in respect to the insurer, á fortiori is it in respect to shippers. The obligation of the owners in this case was exactly the same at Rio and at Valparaiso as at Philadelphia. For the loss, resulting from this violation of their duty as carriers, the owners, as in all analogous cases, are alone responsible, and it is against them, not the defendants, that the plaintiffs should have sought their remedy.

It remains to add a few words on the question of seaworthiness. The evidence, we think, was nearly conclusive that the ship was nnseaworthy when she commenced her voyage. She had been at sea only nineteen or twenty days when she became short of water and the passengers and crew were put on allowance, and, as no supervening cause of the failure is shown, it is difficult to attribute it to any other than a deficiency in the original supply (Fontaine v. Phœnix Insurance Company, 10 John. 58). We were told indeed by the learned counsel for the plaintiffs, that the seaworthiness of the ship when the risks commence, is a presumption of law, which can only be repelled by positive evidence on the part of the underwriter. He must prove, even where it appears that the vessel became unseaworthy in the course of the voyage, that she was nnseaworthy when it commencednor can it be said that this position is destitute of authority. It is in a measure sustained by the opinion of Hr. Phillips and by two or more decisions of the. Supreme Court of Massachusetts (1 Phillips, 324; 2 do. 757; Taylor v. Lowell, 3 Mass. 341; Paddock v. Franklin, Insurance Company, 11 Pick. 227).

In the case, however, of Tidmarsh v. Washington Farmers' & Mechanics' Insurance Company, 4 Mason, 446, it was decisively rejected by that consummate master of commercial law, Mr. Justice Story, and for reasons that appear to us not merely satisfactory, but conclusive. The seaworthiness of the vessel when the risks commence is a condition precedent: to the attaching of the policy, and the fulfilment of this condition is the implied warranty of the assured. The general rule cannot be denied that the burden of proving the fulfilment of a condition precedent rests upon the party whose right to maintain his action or defence depends upon its performance, and no reason has been given why this rule is not just as applicable to the implied warranty of seaworthiness as to an express warranty of neutrality. The alleged exception would be purely anomalous.

The true rule deducible from a full comparison of the cases appears to be that which is stated by Hr. Arnould. The assured is bound to aver and prove that the ship was seaworthy when the risks commenced, but .the proof to be given by him, in the first instance, need not be particular and full. Although slight and general, if not contradicted, it is deemed sufficient, and when given, it shifts the burden upon the itnderwriter (2 Arnould, § 447, p. 1345).

Applying this rule to the present case, it would probably not be difficult, upon this ground alone, to sustain the nonsuit, but as some evidence of seaworthiness was given, we will not say that the question might not with propriety have been,submitted to the jury. "W"e prefer to place our decision upon the ground that there was no evidence of any loss against which the defendants, by the just construction of the policy, undertook to indemnify the assured.

The motion for a new trial is therefore denied, and the judgment of nonsuit affirmed with costs.

       That insurers are not liable for losses resulting immediately from the negligence of the master is now settled to be the law, by a recent decision of the Supreme Court of the United States—Vide General Mutual Ins. Co. v. Sherwood, 11 Leg. Observer, p. 129.


source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    Juliana Blydenburgh v. David Cotheal, impleaded with Abner Jones.
    A general covenant of warranty in a conveyance of lands is not a covenant of title merely, and therefore in effect a covenant of seisin.
    In order to sustain an action for its breach an actual eviction or ouster must be averred and proved.
    Construed as a covenant of title, it is not a covenant running with the land, and consequently no action for its breach could be maintained by an assignee.

      (Before Duer, Campbell, and Bosworth, J.J.)
    Oct. 11, 12;
    30, 1852.
    Thus construed, the covenant is broken as soon as it is made, and is converted by its breach into a chose in action which is not assignable.
    An eviction means actual dispossession, and consequently an averment in the complaint, that the plaintiff by force of a paramount title, was evicted from her own right and title, as not averring or implying a change of possession, was held to be bad upon its face.
    Judgment at special term affirmed with costs.
    Appeal from a judgment at special term in favor of the defendant. ®
    The action was brought to recover damages for an alleged breach of a covenant of warranty in a conveyance made by the defendant D. Cotheal and H. Cotheal, deceased, of lands in Hew Jersey. The plaintiff sought to recover as assignee of the covenant: the complaint upon the terms of which the decision partly turned is as follows:
    The above named plaintiff in this action respectfully shows to this court, that under the date therein stated and for the consideration therein named, the defendant David Cotheal, together with Henry Cotheal, did execute and deliver to Jeremiah W. Blydenburgh a certain deed, in the words and figures following to wit:—
    This Indenture, made the eighth day of Hovember, in the year one thousand eight hundred and thirty-six, between Henry Cotheal and Phebe B. his wife, David Cotheal and Charlotte B-his wife, all of the city of Hew York, parties of the first part, and Jeremiah W. Blydenburgh, of the same place, gentleman, of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of twenty thousand dollars, lawful money of the United States of America, to them in hand paid, by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey, and confirm unto the said party of the second partj and to his heirs and assigns for ever, all that certain tract or parcel of land, commonly known as the Lazarus Wilmurt tract, situate, lying and being in the township of South Amboy, county of ' Middlesex, state of New Jersey. Beginning at the edge of Amboy Bay where the line of General James Morgan, late of the township of‘’South Amboy, county and state aforesaid, deceased, touches the same, thence along -the aforesaid line, south sixty-three degrees and thirty minutes, west fifty chains and fifty links to a stake, thence north twenty-seven degrees and thirty minutes, west twenty-eight chains and forty links to a_ stake, thence north sixty-five degrees, east thirty-two chains and ninety-four links to the aforesaid bay shore, thence down the same the several courses thereof, to the place of beginning (saving and excepting out of the said tract above described, the small lot, piece, or parcel of ground said now or lately to belong to Peter Johnson, being about three acres more or less, and situated upon and near the north-westerly corner of the tract of land, above described), the said tract of land, hereby conveyed or intended so to be, after saving and reserving thereout, .the small lot, aforesaid, containing one hundred and six acres be the same more or less, togéther with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, or to the above described premises, and every part and parcel thereof, with the appurtenances. To have and to hold, all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns for ever. And the said Henry Cotheal and David Cotheal for themselves, their heirs, executors, and administrators, do hereby covenant, promise, and agree to and .with the said party of the secónd part, his heirs and assigns, that they have not done, committed, executed or suffered any act. or acts, thing or things whatsoever, whereby or by means whereof the above mentioned and described premises or any part or parcel thereof, now are or at any time hereafter shall or may be impeached, charged, or encumbered in any manner or way whatsoever. And the said Henry Cotheal and .¡David Cotheal and their heirs the above described and hereby granted and released premises, and every part and parcel thereof with the appurtenances unto the said party of the second part, Ms heirs and assigns, against the said parties of the first part and their heirs, and against all and every person- and persons whatsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents for ever defend to the amount, sum, and extent of ten thousand dollars; but not to any greater amount, sum, or extent.
    In witness whereof the parties to these presents have hereunto interchangeably set their hands and seals, the day and year first above written.
    Henry Cotheal, [l. s.]
    Phebe B. Cotheal, [l. s.]
    David Cotheal, [l. s.]
    Charlotte B. Cotheal, [l. s.]
    Sealed and delivered in the presence of (the words “ upon and” being interlined on the 31st line, first page, after the words “ situate,” and the words “ Wilmurt,” written on an erasure in the 14th line, first page, before execution)
    Charles W. Cotheal.
    Ho. 1 Hew street, Hew York.
    And afterwards on the first day of Hay, 1838, for the consideration or sum of four thousand five hundred dollars to him paid by the plaintiff, the said Jeremiah W. Blydenburgh, then in the actual possession of said land and premises, under his hand and seal did grant, bargain, sell, alien, remise, release, convey, and confirm unto the said plaintiff, her heirs and assigns, all the above described tract of land, by the same metes and bounds as in the above described conveyance to Mm by the said Cotheals; whereby the said plaintiff became and remains the lawful assignee of the said covenant of warranty, and to the damages arising from the breach of the same, to the amount or sum of four thousand five hundred dollars, and the lawful interest thereon.
    And the said plaintiff further shows to this court, that the said defendant, David Cotheal, has not kept his said covenant, but has wholly failed to warrant and defend the plaintiff in the title • to said land, and premises and hereditaments and appurtenances thereunto belonging, thus intended to he conveyed: hut on the contrary thereof says, that the said premises were subject, and still remain subject, to injunction, restriction, and impeachment for all waste to the inheritance—in whomsoever else vested, either absolutely or contingently—committed or to be committed against them; and that the said Henry Cotheal and David Cotheal had cut and removed from the said premises large quantities of wood and clay before the date of their said conveyance ; and that said plaintiff was lawfully evicted from the title and right to said premises, by a paramount and lawful title to the same, at the date of her said conveyance, and has ever since remained evicted, and hath thereby sustained damage to the amount of four thousand five hundred dollars, and the lawful interest thereon from the date of her conveyance.
    And the plaintiff further shows to this court that Virginia W. Morehouse, Josephine B. Winchel, wife of Havila Winchel, and Elizabeth Morehouse, who are the lawful issue of Sarah Anne Morehouse, who is the daughter of Elizabeth Wilmurt, deceased, under whose will the defendant David Cotheal held possession, were at the date of the said covenants by the said David Cotheal, lawfully and solely seized, and stiff remain solely seized, in their own right, of the said lands and tenements invested, remainder in fee.
    And the plaintiff further says, that the defendant Abner Jones claims or pretends to claim some lien or interest in the said covenants of the said David Cotheal, or suspension of the plaintiff’s right of action for the damages arising from the breach thereof, or some part of the same.
    Wherefore the said plaintiff demands judgment against the defendant David Cotheal for the sum of four thousand five hundred dollars, and the lawful interest thereon, from the first day of May, 1838; and that the defendant Abner Jones be barred from all claim to. the said covenants, and the damages arising from the breach thereof.
    The answer of the defendant Cotheal admits the execution and contents of the indenture set forth in the complaint, hut denies that plaintiff was the lawful assignee of the covenant therein. It admits that Virginia W. Morehouse, Joseph B. Winchel, and Elizabeth Morehouse, are the lawful issue of Sarah Ann Morehouse, who was the daughter of Elizabeth Wilmurt, deceased, and that the defendant and H. Cotheal derived their title to the premises under the will of E. Wilmurt, as stated in the complaint, but denies that the children of Mr. Morehouse are seized of a vested remainder in fee. It also denies the commission of any waste creating a forfeiture, and sets up as a special defence in bar the foreclosure of a mortgage given for a part of the purchase-money by J. M. Blydenburgh, and subject to which the premises were conveyed to the plaintiff, but as no evidence was given in support of this defence, it is deemed unnecessary to state it with more particularity.
    The cause was tried before Mr. Justice Sandeord, in February, 1852, by the consent of the parties, without a jury.
    Upon the trial, the counsel for the plaintiff read in evidence an admitted copy of the last will and testament of E. Wilmurt, containing a devise of all her real estate to her daughter Sarah Ann in fee simple, but with a limitation over to third persons “ in case her said daughter Sarah Ann should depart this life without leaving lawful issue.” He then proved that D. & H. Cotheal derived their title to the premises from and through Sarah Ann Morehouse and her husband, by producing and reading the conveyances, which it was admitted were their only source of title. The counsel also read in evidence the record of the proceedings with the remMtitm' attached, in a suit carried from the Supreme Court of H. Jersey into the Court of Errors or Appeals in that state, in which the present defendant, D. Cotheal, was plaintiff in error, and Virginia W. Morehouse, Josephine B. Morehouse (now Winchel), and Elizabeth More-house, by their guardian J. W. Blydenburgh and Havila Winchel, were defendants in error. The counsel then read as evidence of the law of Hew Jersey, two decisions in the above suit of the Supreme Court of that state, which are reported, 1 Zabriskie, 480, and 2 Zabriskie, 434. The suit in H. Jersey, it appeared from the record, was an action of waste brought by the defendants in error, the children of Mrs. Morehouse, to recover the lands that had been conveyed to the Cotheals. The declaration stated in substance that E. Wilmurt died seized of the premises, and by her last will devised the same to her daughter Sarah Ann, in the manner above stated. It then set forth an act of the state of Hew Jersey, passed the 18th of June, 1820, which enacted among other things* that “from and after the passing of that act, when any conveyance shall he made whereby the grantee or devisee shall become seized in law or equity of such estate in any lands or tenements, as under the statute of the thirteenth of Edward the First* called the statute of entails, Would have been held an estate in fee. tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power and'right in such premises* and no other, as a tenant for life thereof would have by law, and upon the death of such grantee or devisee the said lands and tenements shall go to and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common in fee; but if there be only one child, then to that only in fee; and if any child be dead, the part which would have come to him or her shall go to his or her issue in like manner. Provided, the widow of any such grantee or devisee shall have her dower in the premises in like manner as if the said grantee or devisee had died seized thereof in fee simple. And prpvided, when any person shall marry a woman being a grantee or devisee and seized of such estate* the said husband, after the death of his said wife, shall have his curtesy in the said lands and tenements, if there be issue of the marriage, in like manner as if the said wife had died seized of an estate of inheritance in fee tail of the premises.”
    The declaration then averred, that by virtue of the devise, "and of the statute aforesaid, Sarah Ann Wilmurt entered into and became seized of the tenements in her own demesne as of freéhold for the term of her own life, and that being so seized she intermarried in the month of October, 1828, with Andrew H. Morehouse, who therefore in right of his wife became jointly seized of the tenements with the appurtenances for the term of his life, if issue he should have by such marriage. It then set forth the birth of Virginia and the two other children of Mr. Morehouse, the appointment of J. W. Blydenburgh as their guardian, the title and entry of D. and H. Cotheal, and various acts of waste which it charged to have been committed by them, -to the prejudice of the children as entitled to the reversion in fee, and concluded with an allegation of damages to the extent of three thousand dollars.
    To this declaration the defendants D. and H. Cotheal pleaded the general issue, denying waste, and also the following special plea—•
    “ The said Henry and David Cotheal say, that the said plaintiffs ought not to have or maintain their said action against them, because they say that the said last will and testament in the plaintiff’s said declaration mentioned was and is a certain last will and testament of the said Elizabeth Wilmurt, made and published by the said Elizabeth Wilmurt, and duly executed and attested to pass real estate, on the 7th day of March, A.D. 1835—to wit, at the township of South Amboy in the county of Middlesex aforesaid; in and by which said last will the said Elizabeth Wilmurt, after directing her debts and funeral expenses to be in the first place paid out of her personal estate by her executors, and after giving and bequeathing to her son Thomas Wilmurt the sum of one hundred dollars, to be raised out of her personal estate, after her debts and funeral expenses should be paid, if there should so much thereof be left for that purpose, to be paid by her executors within one year after her decease, did devise as follows, to wit: ‘ I give, devise and bequeath unto my daughter Sarah Ann Wilmurt, and her heirs for ever, all the rest and residue of my estate, both real and personal, whatsoever and wheresover. But if it should so happen that my said daughter Sarah Ann should depart this life without leaving lawful issue, then and in that case I give, devise, and bequeath unto Ann Rose, daughter of William Rose, late of South • Amboy, deceased, and to Elizabeth Wilmurt Hyer, daughter of William Hyer of the city of Trenton, in the county of Hunterdon and state of Hew Jersey, and to their and each of their heirs for ever, all my real and personal estate whatsoever and wheresoever that I now possess, or may hereafter possess, to be held by the said Ann Rose and Elizabeth Wilmurt Hyer as tenants in common, and not as joint tenants. And my will further is, that if my said daughter Sarah Ann should not marry, and should depart this life before my decease, then I will that all my personal estate, after the payment of my debts and funeral expenses, and the legacy of one hundred dollars bequeathed to my son Thomas Wilmurt, be equally divided between the said Ann Eose and Elizabeth Wilmurt Hyer, share and share alike, in addition to the above devise of my real estate to them and to their heirs in the event of my daughter Sarah Ann dying without lawful issue.’ As by, &c. &c., will fully appear. And the said Henry and David Cotheal further say, that after the decease of the said Elizabeth Wilmurt as mentioned in the plaintiff’s said declaration, the said Sarah Ann* thereupon, under and by virtue of the said will, became and was seized of the said premises, with the appurtenances, according to the said will; and afterwards, to wit, at the time and place in the said declaration mentioned, intermarried with the said Andrew X. Morehouse. Whereupon, and by virtue of the said will of the said Elizabeth Wilmurt, the" said Andrew X. Morehouse, and the said Sarah Ann his wife, in right of the said Sarah Ann became and were seized of the same tenements, with the appurtenances in their demesne -as of fee, to wit, to them and to the heirs of the said Sarah Ann, of an estate therein, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue surviving her at the time of her death; with this, that the said Henry and David Cotheal aver that the said Sarah Ann is yet surviving and alive, to wit, at the county of Hamilton in the state of Hew York aforesaid. And the said Henry and David further say, that afterwards, to wit, on the 13th of July, 1830, at South Amboy, &c., the said Andrew X. Morehouse and Sarah Ann his wife, being so seized as aforesaid, by a certain indenture of bargain and sale then and there made between the said Andrew X. Morehouse and Sarah Ann his wife of the one part, and the said Henry and David Cotheal of the other part, and duly acknowledged by the said Sarah Ann so as to pass her estate and interest (one part of which said indenture,' sealed with the seals of the said Andrew and Sarah Ann his wife, the said Henry and David now bring here into court, the date whereof is the day and year last aforesaid), for the consideration therein mentioned, the said Andrew X. and Sarah Ann his wife bargained and sold and conveyed the equal undivided moiety of the said premises, with the appurtenances,- to the said Hénry and David in fee simple, as by the said indenture more fully appears. Whereupon the said defendants then and there became and were seized thereof in their demesne as of fee, to wit, of an estate therein in fee simple, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue her surviving at the time of her death $ and afterwards, to wit, on the 19th day of October, 1831, at South Amboy, aforesaid, &c. Andrew Snowhill then being sheriff of the county of Middle-sex, state of ¡New Jersey, by his certain deed of conveyance then and there duly made and delivered under and by virtue of the special authority to him for that purpose given, duly and particularly recited in the said deed, which said deed of conveyance, sealed with the seal of the said Andrew Snowhill, then being sheriff as aforesaid, the said defendants, Henry, and David, now bring here into court, the date whereof is the day and year last aforesaid, did bargain and sell and convey unto the said defendants, Henry and David, the other moiety of the said premises, with the appurtenances in fee simple, and all the estate, right, title, and interest of the said Andrew K. Morehouse and Sarah Ann his wife in and to the same, as by the said deed of conveyance more fully appears. Whereupon the said defendants, Henry and David, then and there became and were seized thereof in their demesne as of fee, to wit, of an estate therein in fee simple, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue her surviving at the time of her death—without this, that upon the death of the said Elizabeth Wilmurt the said Sarah Ann, under and by virtue of the said will, into the said tenements with the appurtenances entered and was thereof seized in her own demesne as of freehold for the term of her life, and the said Virginia W., Josephine B., and Elizabeth, also by virtue of the said will and of the statute in the said declaration mentioned and recited, then and there became and remain as yet solely seized of the same lands and tenements with the appurtenances, in vested remainder in fee and of right, in manner and form as the said plaintiffs have above alleged; and this the said Henry and David are ready to verify. Wherefore, they pray judgment if the said plaintiffs ought to have or maintain their aforesaid action thereof against them, &c.
    To this second plea the plaintiffs demurred, as follows:

      And the said plaintiffs as to the-plea of the said defendants secondly above pleaded, say, that the same and the matters therein contained in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude them the said plaintiffs from having or maintaining their aforesaid action thereof against them the said defendants, and that they the said plaintiffs are not bound by law to answer the same, and this they the said plaintiffs are ready to verify. Wherefore the said plaintiffs pray judgment whether they ought to be barred or precluded from having or maintaining their aforesaid action against the said defendants by reason of anything contained in said plea.
    And the said plaintiffs according to the form of the statute in such case made and provided, state and show to the court here the following causes of demurrer to the said second plea, that is to say—
    First. For that the said plea hath not confessed, avoided, traversed, or denied the causes of action alleged in the said declaration, nor hath the said plea recited or stated anything from the' last will and testament of Elizabeth Wilmurt, inconsistent with the title alleged in said declaration, or as creating any such estate in the said defendants or their grantors, as is alleged and supposed by said plea.
    Second. For that the said plea doth not pretend to recite the whole will of Elizabeth Wilmurt, or in any manner deny but that the said will contains the very devise mentioned in said declaration, both in form and effect, as therein stated and set forth.
    Third. The said plea is inartiflcially pleaded, and in other respects uncertain.
    The demurrer was sustained by the judgment of the Supreme Court, and the plea overruled in the term of April, A. D. 1860. The cause then proceeded to trial upon the general issue, and was tried at the Middlesex June Circuit ensuing, and upon such trial the jury rendered a verdict for the plaintiffs as stated in the postea, as follows, to wit: “ That the said defendant, David Cotheal (the said Henry Cotheal having before that time died), did make waste, sale, and destruction in woods and lands ; that is to say, in taking twenty cords of wood from Spring Hollow, and five cords of wood from Sugar-loaf Hill; and oaks, chestnuts, pines and other trees from the premises adj oining Spring Hollow, and dispersely standing among the clay pits upon said premises, in quantity equal to fourteen and a half cords of wood in manner and form as the said plaintiffs have by their declaration supposed—and they together assess the damages of the said plaintiffs hy°reason thereof at the sum of $89. And as to the other waste charged in said' declaration, the jurors aforesaid upon their oaths say the said defendant, David Cotheal, made no waste, sale and. destruction, as the said plaintiffs in the said pleading have alleged.
    And thereupon judgment was afterwards, to wit, on the 19th day of July,, A. D. 1850, rendered as follows, to wit— Therefore it is considered that the said plaintiffs Virginia W. Morehouse, Josephine B. Winchel, Elizabeth Morehouse, and Havilla Winchel, in right of his wife the aforesaid Josephine, recover their seizin of the said defendant, David Cotheal, of the places wasted by the view of the jurors aforesaid; and also recover their damages assessed by the jury, $89, trebled' in pursuance of the statute, amounting to the sum of $267. And also for their costs and charges by them about their suit in this behalf expended the sum of $82 90, by the court now here adjudged to them and with their assent, and that said defendant be in mercy, &c.
    And the said plaintiffs pray a writ of the state of New Jersey, to the sheriff of the county of Middlesex, commanding him to cause them to have their full seizin of the places wasted, by the view of the jurors aforesaid, is granted to them returnaable, &c.; and also pray a writ of fieri facias to the same sheriff, commanding him to make of the goods and chattels, lands, and tenements, &c., of the defendant, David Cotheal, their treble damages with their costs and charges so recovered as aforesaid, it is also granted to them returnable, &c.
    With the plea of the general issue there was a notice of this import, that, on the trial it would be shown that the .wood cut was used for repairs to the fences and premises, and the clay dug from open and accustomed mines, &c.
    To review these judgments, a writ of error in the ordinary form was issued, and the assignment of errors is as follows, viz.:

      Afterwards, to wit, of the same term of October, eighteen hundred and fifty, before the said Court of Errors and Appeals of the State of Hew Jersey, at the State-House in the city of Trenton, comes the said David Ootheal, by William H. Leupp, his attorney, and saith—That in the record and proceedings aforesaid, and also in the giving as well the judgment hereto- , fore given, to wit: in the term of April, A. D. 1850, by which judgment the plea of the said Henry Ootheal and David Ootheal, by them secondly above pleaded, was by said Supreme Court overruled, as also in the final judgment by said court . rendered and given in said suit, there is manifest error in this. That by the terms of the will of Elizabeth Wilmurt, in said second plea recited and set forth, it was the manifest design of the said Elizabeth Wilmurt to give and devise, and the said 'testatrix did give and devise, to her daughter, Sarah Ann, in said will named, an estate in fee simple in the lands and real state the subject matter of said bequest, determinable and defeasible only by the death of said Sarah Ann without issue left by her at the time of her death, whereas by the aforesaid judgment it was adjudged and determined that by said devise the said Sarah Ann Wilmurt took and was entitled to an estate tail in said lands and real estate.
    2. And in the giving of the final judgment aforesaid, there is manifest error in this. That whereas by the record it appears the judgment final was given in said suit, for the said plaintiffs against the said defendant being here the plaintiff in error, whereas by the law of the land the said judgment ought to have been given for said plaintiff in error the defendant as aforesaid in said suit.
    3. And there is further manifest error in this, that said judg-ment is variant from the verdict rendered by the jury empanelled and sworn to try said cause.
    4. Arid there is also error in this, that as by the record aforesaid manifestly appears, the verdict rendered by said jury is insufficient, and void in not ascertaining the specific value and kind of trees and wood alleged to have been wasted, and in that the assessment of damage thereby is joint and general, and in that the quantity of land alleged to have been wasted is neither ascertained nor defined.

      5. And said final judgment is also erroneous in not acquitting and discharging said defendant from the waste charged in the declaration in said suit affiled, and as to which waste the defendant was acquitted by the verdict aforesaid as rendered.
    6. And further, said judgment and proceedings are in divers other respects erroneous, informal and insufficient, and especially in that the judge, before whom said cause was tried, on exception thereto made by the plaintiffs, refused to admit evidence of the repair’s made to buildings and fences on said premises and other similar improvements thereon, by the said defendant. And the said plaintiff in error prays that the judgments aforesaid for the errors aforesaid and other errors in the record and proceedings may be reversed, annulled, and for nothing held, and that the plaintiff in error may be restored to all things which he hath lost by occasion of said judgments.
    It further appeared from the record, that in April Term, 1851, the Court of Errors and Appeals reversed the judgment of the Supreme Court for the errors assigned, and ordered that the defendant D. Cotheal should be “ restored to all things which he had lost by reason of such judgment, and that the record and proceedings be remitted to the said Supreme Court.” They were remitted accordingly, the remittitur filed, and the proper order entered thereon.
    It does not appear from the record what were the exact grounds of reversal of the judgment, nor is there any report of the case in the Court of Errors.
    Eo other evidence than that which has been stated was given by counsel on the part of the plaintiff before Judge Sandford, nor was any evidence given on the part of the defendant. The learned judge directed, judgment to be entered for the defendant, and stated, in writing, the following as the grounds of his decision:—
    1. If there was an eviction by means of defendants’ commission of waste as claimed, it took place at the date of their * deed to plaintiff s grantor, their covenant of warranty was then broken, and the damage did not pass to. the plaintiff.
    2. There has been no eviction as matter of fact, the plaintiff was never molested or disturbed in the possession of the premises, in bon sequence of the waste or by the alleged hostile title.

      3. The evidence does not show that the title set np in the Morehouses is valid, nor that the defendants had not the whole title in fee. As the law is in this state, Mrs. Morehouse took a conditional fee, with an executory devise over, and her children took no estate by the will.
    The counsel for the plaintiff excepted to the decision, and the case was now heard upon the pleadings and bill of exceptions.

      J. W. Blydenburgh for the plaintiff,
    argued as follows—
    • I. The will of E. W. was made and proved before the year 1839, and the devise over to R. & H. being on an indefinite failure of issue, was by the law of this state a fee tail in the first taker. (See Patterson v. Ellis, 11 Wend. 259, 261; Lott v. Wyckoff, 2 Com. 355, 442; Baker v. Lorillarrd, 4 Com. 261.) It was, by the law of Hew Jersey, the same (1 Zabriskie, 480, and cases there cited; 2d of do. 434), and this court had no right to presume the law of Hew Jersey otherwise, without authority of any kind, and against the Supreme Court of Hew Jersey.
    The construction of the will, by the Supreme Court of Hew Jersey, is conclusive evidence of the law of that state, in this case, until the contrary be shown.
    The Court of Errors in Hew Jersey merely reversed the judgment to recover treble damages for the waste charged, and the remittitur proves no point decided. There was no bill of exceptions, and they could not award a venire de novo. (3 Denio, 97, and authorities there cited.)
    They could not give a new judgment, or restore the cause to the court below. (3 Denio, 97J The question of title was not before the Court of Errors on that writ of error, by the rule or principle of the common law : the law of error in that state, which will be presumed to be the common law, until the contrary appear. The title was before the court below on the trial of the cause, under the general issue. If exception to the title was there waived, it could not be taken in the Court of Errors, but as error in the interlocutory judgment. If taken and overruled, it was not carried to the Court of Errors by bill of exceptions, which could alone authorize that court to riestore it to the court below, as an open question.

      The errors assigned were numerous, and the Court of Errors decided and settled no principle whatever. (Opinion of Bosworth J. in Oakley v. Aspinwall.) It is not deference to the Court of Errors to refuse judgment in other actions, because that court settled nothing in that particular case. (See opinion of Sandford J. in Oakley v. Aspinwall.)

    The remaindermen have still a statutory right of entry for the waste. There is nothing that shows no waste was committed, or bars a right of entry upon the land therefor. Plaintiff in error did not ask for a new trial, or claim a verdict in his favor. If he took the chance of a verdict without complaint, he cannot object above or assign it as error. If he had evidence of title, it was properly left to the jury. If there was none, and that was the error assigned, it was the duty of the Court of Errors to reverse or affirm the judgment, and either decided the title. Either this fact was well submitted, of the defendant had the unfair benefit of a chance in error, which, however, did not avail him; either way, he has no right to question the title in remainder now.
    The reversal of a judgment for waste does not take away the previously existing right of entry for the waste. (Badger v. Floid, 12 Mod. 398, and Withers v. Harris, 2 L. Raymond, 808.) Keither the judgment for waste, nor the reversal of it, can leave the party worse than he was without the judgment. It merely throws him back upon the statutory right of entry.
    A naked reversal restores Mm to his right of action. (Stewart v. Close, 1 Wend. 441, and concurred in by the Court of Errors, 4 Wend. 95.)
    The positive fact that the Court of Errors, by its solemn judgment, restored the plaintiffs below to their original right of action, precludes their doubt of a title, which alone could sustain it.
    Hr. Cotheal asked to be eased of a judgment of forfeiture, and treble damages for waste. He obtained no judgment in Ms favor, and took no steps by which he could obtain one, much less an implied transfer of another’s title to himself, as a reward for wasting that inheritance.
    The title in remainder was indeed necessary to support the judgment for waste, but á transfer of that title was not necessary to reverse the judgment; nor is there a particle of evidence that that title was doubted for tlie purpose of reversal. If at all considered, it was in no wise impeached, nor is there an opinion or intimation against it by the Court of Errors. We are bound by the record. The opinion of the Supreme Court still stands as the construction of the will and the law of the tjtle. Mr. Cotheal asked for a reversal of the judgment of the Supreme Court upon the title, but obtained no opinion of the Court of Errors to that effect. If they could not give such a judgment, they might have given an opinion to that effect, if they so intended; but their refusal is conclusive that they did not intend to prejudice a new action for the waste, or throw a cloud upon the title in remainder. Heither the statute nor the forfeiture was reversed or disturbed. Silence was not evidence, where there was no authority to decide, or intention to embarrass.
    THE EVICTION.
    There can be no stronger proof of actual eviction from title, than the fact that a vested remainder exists outstanding.
    But, cutting wood and trees, and vending clay, is admitted by the pleadings. This was waste, which gave the remaindermen an actual right of entry, without process of any court. (Elmer’s L. of N. J., 82.)
    “ When the right exists, it is absurd to hold that its exercise was no eviction, .merely because the holder of the estate in remainder had not first invoked the aid of a court to do that which the statute declared should have all the force and effect of a writ of possession.”
    The right of entry being in infants, no statute of limitations run against it, nor were they ciapable of waiving the right by election. It was a continuing right, and the question of fact is, did they exercise it ?
    A stranger may enter to the use of an infant without other authority, and the entry will be good, if openly avowed, and not a mere trespass. (Fritchet v. Adams, 2 Strang. 1128.)
    The covenantee was in actual possession of the places alleged to be wasted at the date of plaintiff’s deed, 1838. A continuous fact is supposed to continue, until the contrary appear; and it is nowhere alleged that plaintiff ever made an actual entry upon the places wasted, but, on the contrary, she alleges eviction at that time, and ever since, and the defendant’s answer does not deny her eviction, but, that it was by paramount and lawful title.
    The answer states, that ejectment was commenced by Cotheal against plaintiff, and the defendant then in possession of the premises, in April, 1847, and judgment rendered against them in 1848, which was enforced March 1st, 1849.
    That defendant, from 1847 to 1849, was then in actual possession of the premises, and, by the title of the action for waste, 1848 (1 Zab. 481, 335), was the guardian of the remaindermen, claiming the premises by statutory right of entry, and prosecuting the action at that time. The record then proves a claim, by the remaindermen, for the premises as forfeited in 1847, and a right, by statute, to enter thereupon, and the party in actual possession admitting the claim by prosecuting the action in 1848, before their removal by Cotheal, March 1st, 1849. This is a complete eviction from possession as could possibly take place or be imagined. (Stewart v. Drake, 4 Halstead, 139.) ■
    The right of entry by statute, and entry without judicial process, was and remains equivalent to the execution of a writ of possession; a legal eviction from possession by process of law, although not judicial process. (See Smith v. Sheppard, 15 Pick. 147; Gove v. Brazier, 3 Mass. 540; Rickert v. Snyder, 9 Wend. 422.)
    The entry for forfeiture vested the estate in actual possession of the remaindermen, which could not be divested by the reversal on the ejectment suit.
    If the plaintiff can sustain the title to which she voluntarily yielded as valid and paramount, it is an eviction. (Hamilton v. Cutts, 4 Mass. 350; Stone v. Hooker, 9 Cowen, 157; Greenvault v. Davis, 4 Hill, 643; Smith v. Shepherd, 15 Pick. 147.)
    [See Ruffin at length in Grist v. Hodges, 3 Devereaux, 200.]
    See Clark, Lessee, v. Courtney, 5 Peters, 354, and Smith’s Leading Cases, 469, Am. ed.
    The possession of a termor or tenant under penalty of forfeiture and treble damages,'is not the possession warranted by the covenant, or that of an absolute owner, but of a quality entirely different. Any abridgment or qualification of the right to a full possession, is a breach of the covenant of warranty.
    n. The covenant of warranty was broken as soon as made, by the mere existence of an outstanding vested remainder, the possession of which never passed to the covenantee.
    The right of action for this breach remained with the covenantee, until the alienation, when the covenantee received $4500 of his alienee, who by possession of the term became vested with the right of action for that amount against the covenantor, and the right of action in the covenantee thereby suspended until restored by payment of that sum to the alienee. This rule holds even where the deed contains several covenants, followed by that of warranty, "because on all the covenants there are but the same damages, to which and for which the alienee has priority of action, if possession of any part or quality pass to him, and the breach continues. Hence the covenantee can never sue even on a covenant of seizin, until the alienee is satisfied his damages under the covenant of warranty. (Swydam v. Jones, 10 Wend. 180 ; 5 Cow. 143.)

      H. Thompson, for the defendant Cotheal,
    presented and argued the following points —
    I. There is no proof of any title in the Morehouse children, because: 1st. To establish such title, it must be held that Sarah Ann, their mother, took a fee tail, and that Cotheal had only the conveyance of a fee tail, and was liable for waste, and"'' forfeited the land by the commission of waste, before November 8th, 1836. 2d. The decision of the Court of Errors and Appeals of New Jersey establishes that Mrs. Morehouse took a fee, determinable and defeasible only by her death, without issue left at her death. 3d. Without proof of the law of New Jersey, the devise would be decided according to our law. Mrs. Morehouse, by our law, took a fee, with an executory devise over, and her children took no estate by the will of Elizabeth Wilmurt. (1 Cowen, 103; 2 Hill, 201 and 2, 319 and 322; 3 Paige, 281; 8 Paige, 483.)
    H. There was no eviction in fact. The plaintiff was never disturbed in possession of the premises in consequence of any ’ waste committed, or by the existence of the Morehouse title. (11 N. Hampshire Rep. 74.)
    HI. To maintain, an action on a covenant of warranty and quiet enjoyment, there must be an actual eviction, or a surrender of the possession to the lawful owner, by paramount title. (6 Barbour, 165; 4 Hill, 643; 21 Wendell, 120.) Here there has been neither; and the covenant of warranty is not broken till eviction. (4 Kent’s Com. 471, 2d ed.; 3 Barbour Chan. Rep. 528.)
    IT. The foreclosure barred this plaintiff from all right and claim, and cut off the covenant of warranty, if the same could run with the land.
    Y. If there be an eviction in this case, such as would authorize an action on account of waste committed, then such covenant was broken before conveyance to her, and the covenant did not run to the plaintiff. (2 Barbour, 300; 1 Comstock, 564.)
   By the Court. Duer, J.

It is difficult to understand from reading this complaint exactly upon what ground the plaintiff claims to recover; whether upon the ground that the defendant and his brother had only a life estate when they conveyed, and that, the remainder in fee was then vested in third persons, or that by the commission of waste their title and right to the possession were wholly divested. It is quite unnecessary, however, to determine this question, since there is no hypothesis, consistent with the facts in evidence, upon which the defendants can be rendered liable in the present action.

The covenant of warranty upon the breach of which alone i, this action is founded, is not a covenant, that the party cove- / nanting is then seized and will continue to be seized of an / absolute indefeasible estate in the premises conveyed, and, consequently, it is not violated merely by the existence of an out- i standing paramount title. Its true meaning and legal inter- j¡ pretation is that the grantee, his heirs and assigns, shall not be | deprived of the possession by force of a paramount title. ^ It ' is true, that there are cases in the .English reports from which j, it may be inferred that a general covenant of warranty is ' there construed as a covenant of seizin, but in this state, and in ', other states of the Union, the law is settled by numerous deci-1 sions that in order to maintain an action for a breach of the covenant, an actual eviction or ouster, from the possession of the whole or of a part of the premises conveyed, by force of a paramount title, is necessary to be proved. It may not be necessary to prove an eviction by. process of law, for the possession may be changed by its surrender to the rightful owner, but, in all cases to show a breach of the covenant, evidence of an actual and lawful dispossession must be given. (Vanderham v. Vanderham, 11 John. 122; Montresor v. Rice, 3 Wend. 180; Webb v. Alexander, 7 Wend. 281; Beddoes, Executor, v. Wadsworth, 21 Wend. 120; Greenvault v. Davis, 4 Hill, 643; Mitchell v. Warner, 5 Connec. 521; Loomis v. Bedell, 11 N. Hamp. 521; Emerson v. Proprietors, &c., 1 Mass. 464; Hamilton v. Cutts, 4 Mass. 349.)

In the present case, there is no evidence to show an actual eviction of the plaintiff from the possession of the whole or of any part of the premises, either by the children of Mrs. More-house, in whom the remainder in fee is alleged to be vested, or by any other person having a title paramount to that which the defendant' conveyed; nor, in truth, is any such eviction averred in the complaint. The complaint, indeed, avers that the plaintiff has been evicted by a paramount title from the title and right conveyed to her, but an eviction merely from a right and title is language unknown to the law, and is either wholly unmeaning, or means only that a title was vested in third persons preferable to that of the plaintiff. Construing the covenant of the defendant as a covenant of seizin, the complaint avers a breach, and not otherwise. It is, therefore, bad upon its face, and no evidence was given upon the trial that could justify its amendment.

Of an actual entry by the children of Mrs. Morehouse, or their guardian, at all affecting the possession of the plaintiff, there is no evidence whatever, and the supposition that the existence of a statutory right of entry was in judgment of law equivalent to a positive eviction, we do not hesitate to reject as unsound and extravagant. If a subsisting right of entry in the persons entitled in remainder placed them in judgment of law in the actual possession, it follows that, as this right, if it ever existed, accrued before the conveyance to the plaintiff, she has never-been in possession at all, and consequently has never been evicted.

Even could we be justified in saying that a covenant of warranty, like that of seizin, is merely a covenant of title, we should still be constrained to hold that the plaintiff, as an assignee, is not entitled to maintain this action. Thus construed, the covenant, if broken at all, was broken as soon as the deed containing it was delivered, and J. W. Blydenburgh, the grantor of the plaintiff, could have maintained an action for its breach. The law, however, is established and undoubted, that a broken covenant does not run with the land, since it is converted by the breach into a mere chose in action, which the law forbids to be assigned. (9 Coke, 60. Cro. James. 369. Greenly v. Wilcox, 2 John. R. 1. Ker v. Shaw, 13 id. 236. Witty v. Mumford, 5 Cow. 137. Mitchell v. Warner, 5 Conn. 497. Bartholomew v. Canche, 4 Pick. 167. Clark v. Swift, 3 Metcalf, 390. 4 Kent’s Com. 5 ed. p. 491, note (a) and cases there cited. Yide also, 4 Sand. S. C. Rep. p. 821.)

In the observations that have now been made, we have assumed, that the devise to Sarah Ann Morehouse, in the will of Elizabeth Wilmurt, created an estate tail, which by force of the Hew Jersey statute was converted into an estate for life in the mother, with the remainder in fee to her children. The Supreme Court of Hew Jersey, in the cases that were referred to on the argument, gave this construction to the devise, and we certainly incline to think that the construction is justified by the decisions in England, and the strict rules of the common law. The judgment, however, of the Supreme Court of Hew Jersey was reversed by the Court of Appeals, and upon examining the record, we are of opinion that the reversal could only have proceeded upon the ground that the plea of the defendants, which had been overruled, ought to have been sustained as a valid and full defence. We believe, therefore, that the Court of Appeals meant to decide that the construction which the court below had given to the will of E. Wilmurt was erroneous, and that by force of the devise, Mrs. Morehouse took not an estate tail, but a fee, determinable only by her death without issue then living. We do not deem it necessary, however, to place our own decision upon this ground, since even upon the supposition that the remainder in fee is vested in the children of Mrs. Morehouse, the present action, for the reasons that have been given, is certainly not maintainable.

There is another objection to the plaintiff’s recovery which we deem it proper to state, although it was neither raised on the argument before us, nor seems to have been taken in the court below.

It is quite certain that an action for waste can only be maintained by those in whom the next immediate estate of inheritance, in remainder or reversion, is vested. It will not lie on behalf of the remainderman of reversioner in fee, where there is an intervening estate for life; in other words, where there are two or more successive estates for life, and the persons so entitled are still living. (Co. Litt. 536-54, and 4 Kent Com. 78.) It is true that in this state the Revised Statutes have given the remedy of an action of Waste or trespass to the remainderman or reversioner, notwithstanding there is an intervening estate for life or years (2 R. S. p. 750, § 8); but as there is no evidence of a similar statute in New Jersey, we are bound to presume that, in that state, the common law doctrine still prevails. Adopting then the plaintiff’s construction of the'devise to Mrs. Morehouse, the necessary effect of the New Jersey statute upon the devise, as the facts existed when the Cotheals acquired their title, was to create two successive estates for life—an estate in Mrs. Morehouse in her own right, and in her husband as tenant by the courtesy. Until her marriage, Mrs. More-house was the sole tenant for life, but after her marriage and the birth of a child, the husband became seized of the freehold for his own life,—and the life estate of the wife, as an estate in possession, was displaced and converted into a remainder. The children, therefore, are not entitled to the next immediate estate of inheritance to take effect in possession upon the death of their father, since there is an intervening estate for life in-the mother, which, so long as both parents are living, is a bar to any common law or statutory remedy for waste to which they might otherwise be entitled. There is no evidence that either of the parents has died, and we are therefore bound to assume that both were living not only when the alleged waste was committed, but when the action founded upon it was commenced. The allegation, therefore, that the children have had or now have a right of entry, as resulting from the waste, would seem to be groundless.

We do not at present see that any satisfactory answer can be given to the objection that has now been stated, but as it is our invariable rule never to decide a cause upon a point not argued by the counsel, we do not make it a ground of our decision. We affirm the judgment at special term with costs, upon the ground that there is no proof of an actual eviction—therefore, ño proof that the covenant of warranty has been broken.