text:
    Clarke et al. Respondents, v. Ward, Appellant.
    The defendant, being the payee of a note payable in Augusta, Georgia, negotiated it to the plaintiffs, who sent it to a bank in Augusta, to be collected for them. They did not instruct the bank to notify the defendant in the event of its being protested. It was protested for non-payment, and a notice for the defendant was sent to the plaintiffs in a letter from the bank to them. The usual time of communicating by mail was about five days. The plaintiffs, about ninety days after the note matured, wrote to the bank for information, and in reply, were promptly advised of the facts. The plaintiffs and the defendant resided in the city "of New York. The plaintiffs, on being informed that the note had been protested, notified the defendant.

      Held, that as the defendant was known to the plaintiffs to reside in the same place with themselves, and the note was protested by their agent, and for them, due diligence had not been used to notify the endorser. Not having required their agent to mail a notice of protest direct to the endorser, they took the risk of the safe transmission of the notice, and of its receipt in time to make due service of it. That an omission for so long a period after notice of non-payment, or advice of payment should have been received, to inquire respecting the note, unexeused, constituted laches, which discharged the defendant.
    A motion for a new trial, on the ground of newly discovered evidence, cannot be heard in the first instance at the General Term. It must be made at special term. If denied, an appeal may be taken from the order denying it. Such appeal will be heard, at the same time as the appeal from the judgment.
    (Before Campbell, Boswobth and Hoffman, J.J.)
    January 8; January 27, 1855.
    The defendant is sued as endorser of a note for $234T\\, dated at tbe city of New York, July 30th, 1850, and payable six months from its date, at Augusta, Georgia, to the order of the defendant, and by him endorsed to the plaintiffs.
    The complaint alleges presentment of the note to the maker, demand of payment; neglect to pay it; protest of the note, and dire notice thereof to defendant.
    The answer puts in issue the presentment to, and demand of payment of the maker, and also notice of presentment and of nonpayment to the defendant. The answer contained no new matter. Yet the plaintiffs put in a reply, which avers due presentment, demand of payment, neglect to pay, protest of tbe note, and the immediate mailing of original protest, and notices of non-payment, one of which was addressed to the defendant, and mailed to the plaintiffs, who were subsequent endorsers of the note. It also alleges that the mail was lost, and that the notices so mailed never came to hand, and this without fault or negligence of the plaintiffs, and that “ as soon as the fact of said loss came to their knowledge, they notified the defendant thereof,” and he thereupon or soon thereafter promised to pay the note.
    The issues were refered to Hon. M. Ulshoeffer, as referee, and he reported, as facts found by him, that the note was duly presented and protested, February 1, 1852. The notary duly mailed the note, and a notice of protest for the defendant, under cover of a letter addressed to the plaintiffs, at New York, where they and the defendant resided, that plaintiffs never received the same, nor were they aware of such non-payment' until the 15th day of May, 1851, when without delay, they notified the defendant.
    The plaintiffs being owners of the note, had sent it to a bank at Augusta, for collection, and the notary, on protesting the note, forwarded notices as has been stated.
    It appeared in evidence that the usual period of communicating by mail between New York and Augusta, was five days. The plaintiffs, not having been advised in relation to this note, by the bank to which they had sent it, wrote to the bank on the subject, and were informed by a letter dated on the 10th of May, that the note was protested on the 1st of February, and mailed to their address on the 2d of February. The plaintiffs had bought the note of the defendant, who resided in the city of New York, which fact was known to them when they bought the note.
    John D. Maxwell, a witness for the plaintiffs, testified that on the day of the receipt of this letter, he called at defendant’s place of business to see him on the subject, and not finding him, left for him a letter advising him that the note had been protested. This occurred about the 15th of May, 1851.
    The referee reported in favor of the plaintiffs. The defendant, in connection with his appeal from the judgment, moves for a new trial on affidavits of newly discovered evidence, being the very letter referred to by Maxwell, as the defendant alleges, and bearing date on tbe 12⅞ of June, 1851, and which defendant avers on his belief to be the date of its delivery. The plaintiffs denied the right of the defendant to be heard on this motion', it not having been first made at the Special Term.

      John Tan Burén, for Appellant.

      M. S. Bidwell, for Respondents.
   By the Court.

Bosworth, J.

It seems to be settled law, in this state, that when the holder of a note sends it out of the state to be presented for payment, at the place where, by its terms, it is payable, and it is protested for non-payment, and notice of protest is duly mailed to the owner of the note, prior endorsers will be holden, if the owner of the note gives them prompt notice, upon the receipt of the notice mailed to himself. This result will follow, even though it appears that the prior endorsers would have received notice at an earlier day if the notices had been mailed directly -to them. (Mead v. Engs, 5 Cow., R. 808; Bank of U. S. v. Davis, 2 Hill. 457-8; Palen v. Shurtleff, 9 Metcalf, 581.) In the cases here cited, the notices, though not mailed direct to the endorsers sought to be charged, were received by due eourse of mail by the endorser to whom they had been enclosed, and he on the receipt of them duly notified the prior endorsers.

In this case, the notice enclosed to the plaintiffs for the defendant was not received by them at all. It was no part of the purpose of mailing notices to the plaintiffs, to charge them as endorsers. They owned the note, and it had been protested for them by their agent.

A question may here arise, whether an owner who sends a note out of the state for collection, endorsed by persons residing, and known to him to reside, in the same place with himself, if he does not advise his agent where the endorsers reside, so that notice may be mailed direct to them, in case the note is protested, does not take the risk of the mail, if notices for the endorsers are sent enclosed in a letter directed to himself If instead of being owner, he was merely endorser of a note owned by others, it would seem to be reasonable, that as soon as without laches on bis part, he received a notice, the mailing of which fixed his liability, he might charge a prior endorser by giving him prompt notice, especially when it is held that he is not discharged from liability, ■ by an omission of the holder to notify the prior endorsers.

A mere endorser might well suppose a note was paid, not having received a notice of its protest within the time it should arrive, if the proper steps had been taken to charge him. Naturally so supposing, he would not be apt to inquire whether it had been paid or not. But an owner of the note, who had sent it to an agent for collection, and who, as in this case, should have received notice of protest of the note, by the 7th or 8th of February, at the farthest, or advice of payment at a date not much later, but not having received either within the usual time, would naturally infer, that some omission of duty by his agent, or some casualty had occurred, to prevent the receipt of notices that he might probably be expected to have forwarded.

In such a case, interest, if not duty to the endorsers before him, if diligence alone on his part could charge them, would seem to require of the owner that he should ascertain what had been done with the note, so that if any claim was to be made on the prior endorsers, he should notify them of it as soon, as by the use of ordinary diligence, he would ascertain that the note, instead of being paid, had been protested.

Yery slight diligence would have enabled the plaintiffs to ascertain, during February, what had been done with the note, and to have notified the defendant. No inquiries were made by the plaintiffs, however, until the last of April or first of May. Those inquiries were promptly answered, and the earliest notice to the defendant that can be pretended, was given as late as the middle of May.

It is, as a general rule, the duty of the holder of a note, to give on the day after a note is protested, notice of the fact to any party he intends to charge, either by personally serving it, or mailing it, as the facts of the case mayrequire.

The question is obviously reduced to this: is a bank which acts as a mere agent to collect, or if not paid,- to protest a note, to be treated in all respects as owher, for the purpose of giving notice to its principal, the actual owner ? and will a notice mailed to tbe latter, so as to charge him as endorser, if not owner, enable him, whether the notice reaches him or not, on being informed of the fact of the dishonor and protest, to charge a prior endorser, by promptly notifying him, although information of the fact may not have been acquired earlier than ninety days after the protest, when, by due course of mail, it should .have been received in six or seven days at the longest ?

Or is such an endorser, and actual owner, who receives neither notice of protest, nor advice of payment, at the time notice should have been received, if mailed at the proper time, or advice of payment should have been received, if forwarded, according to the usual course of business, bound to inquire of his agent, and use some diligence to give notice to a prior endorser, if it shall turn out that the note has been protested?

Is he bound to inquire at all, at the peril of losing the responsibility of prior endorsers? or may he continue passive, until at some uncertain period, he may casually learn that the note was not paid, but was protested ? If bound to inquire at all, how long may he delay inquiry, after the expiration of the period, at which he should have been advised in relation to the note ? Will he he exempt from the imputation of negligence, if after double the usual period has elapsed, he omits to inquire ? If the result of this controversy turns wholly on the question of due diligence, then that question, in this case, is one of law, as the facts on which its determination depends are undisputed, and neither have been found by the referee, nor are to be found by us upon conflicting evidence. (Carroll v. Upton, 8 Coms. 272.)

If it was the duty of the plaintiffs to make any inquiries of their-agent, in order to preserve the liability of the defendant as a prior endorser, in consequence of not receiving notice of protest in the usual time, or advice of payment according to the course of business, then it will not be denied, I think, that there was a want of due diligence in this case, even if the right 'to recover depends on that question alone, unless it can be made to appear as matter of fact, that it was according to the customary course of business, to omit giving such advice for a period, substantially, as long as had elapsed before the plaintiffs wrote to their agent for information.

As the rule is stated in elementary works, “ each party to a bill or note, whether by endorsement or mere delivery, has, in all cases, until the day after he has received notice, to give or forward notice to his prior endorser, and so on till the notice has reached the drawer.” (Chitty on Bills, 520, 521.)

And a bank or banker, and, perhaps, other agents, holding a bill or note, to obtain payment, when not acting as a mere servant, is considered, as respects this rule, as a distinct party to the instrument, and is allowed a day to give notice to his customer or employer, as if he had himself been a holder in his own right. (Id. Colt v. Noble, 5 Mass., 167, and cases cited above; Howard v. Jones, 1 Hill, 263.)

Adopting this rule, and applying it to the full extent to which the facts of any adjudged case, to which our attention has been called, carries it, we are still without any direct authority upon the question, whether in a case like this, the owner of a note, on failing to receive advice respecting it in the due course of mail, either of payment according to the ordinary course of business, or of protest according to the methods of proceeding requisite to charge an endorser, is subject to the imputation of laches, by which his former endorser is discharged.

If the plaintiffs had instructed the bank to which they sent the note for collection, where the endorser resided, and to mail notice to him in case it was protested, no question could have arisen, if the instructions had been followed. In such a case due diligence would have been used to notify the endorser, and his liability would have been fixed, whether he received the notice or not. Not having done that, but on the contrary having allowed the bank to mail notice to themselves only, we are inclined to the opinion that they took the risk of the notice reaching them by due course of mail, and that, failing to so receive it, and to notify the defendant as early as would have been necessary, if they had so received it, he is discharged.

But it is not necessary to decide, that if, on failure to receive notice of protest or advice of payment, they had written promptly, on such intelligence being due, to ascertain the fate of the note, and on being promptly informed, they had notified the defendant, he would nevertheless have been discharged.

Even if such diligence would be sufficient to retain the liability of the endorser, yet as according to the facts of this case, as they now appear, no sucb diligence can be pretended, the judgment must be reversed. The plaintiffs did not write for information, until the latter part of April. This long delay is wholly unexcused.

What facts may be established, and what questions they may present, cannot be anticipated. It is enough to say, that on the facts deducible from the evidence given on the trial of this action, the defendant is not liable.

This result renders it unnecessary to act upon the motion for a new trial, made on the ground of newly discovered evidence. Such a motion can properly be made only at Special Term. If . made there, and denied, an appeal from the order denying a new trial, will entitle the appellant to be heard on the appeal at General Term, on all the papers on which his motion was decided at the Special Term.

The judgment must be reversed, the report of the referee set aside, the rule of reference vacated, and a new trial, granted, with costs to abide the event.


source: Caselaw Access Project

author: Campbell, J. Hoffman, J.

license: Public Domain

text:
    The Mechanics’ Banking Association v. Nelson Place, impleaded with another.
    A proper notice of the dishonor of a promissory note, on -which the defendant was an endorser, was left by a notary at his usual place of business, and within business hours, and was delivered to a person then in the office; but there was no proof that this person was in the employ of the defendant.

      Held, that the notary was not bound to ascertain whether the person so in possession of the office, and apparently representing the defendant, was in his actual employ, as clerk or otherwise; and that the service of the notice was therefore sufficient to charge the defendant as an endorser.

      Held, that the notice was good, although it was proved on the part of the defendant, that he had no agent or clerk in his office, and that the notice had not been received by his partner.
    Judgment dismissing complaint reversed, and new trial ordered — costs to abide event.
    (Before Campbell and Hoffman, J.J.)
    Jan. 10; Jan. 21, 1855.
    Appeal by tbe plaintiffs from a judgment at Special Term, dismissing tbe complaint.

      The action was on a promissory note for $363.09 on which the defendant Place was sought to be charged as last endorser. The complaint was in the usual form, and averred all the facts necessary to be proved to charge the defendant.
    The answer denied demand of payment and notice of refusal.
    The action was tried by the Chief Justice without a jury, 26th April, 1854. The following is the testimony given on the trial, and the decision thereon by the Chief Justice:

      A. E. Ellis was produced as a witness on the part of the plaintiffs, and was sworn, and testified, that when the promissory note became due, he presented the same to the City Bank and demanded payment, which was refused: that on the seventh day of November, A. D. 1853, he served a notice, of which the following is a copy, at the office of Nelson Place, No. 69 South street, New York; the sixth of November being a Sunday. The notice is as follows, viz:
    “New Yoek, Nov. 5th, 1853.
    “ Sib, — Please to take notice, that a promissory note made by William H. Rockwood for $363.09 dollars, endorsed by you, was this day protested for non-payment, and that the holders look to you for the payment thereof.

      “ Your obt. servant,
    “Wm. Bloomfield,
    “ Notary Public and Attorney at Law, No. 20 Nassau st.”
    The notice was in a note folded and directed to Nelson Place.
    On his cross-examination the witness testified as follows: I do not know Nelson Place personally; was at his office yesterday morning to inquire whether there was any other Nelson Place; left the notice with a man at defendant’s office; cannot say who he was; I left it with him because it is customary; I did not ascertain who he was or what he was doing there; I don’t know what he was doing there; my original memorandum of the service is in the notary’s book, and reads thus: “ Nelson Place, to a man in his office.” I did ask if defendant was in, and the man said he was not; that was all I asked. It is my custom to ask whether the person I leave notices with has to do with the office, unless he appears to be employed there; a railing incloses the desks in the office, and there is nothing there for sale; there are two offices with a door between. The person I served, I think, was in the front office; am not certain which is the largest; serve five or six notices every day; am the notary’s clerk; can not remember all, and therefore make a memorandum in a book; made a memorandum of this service in a book on the day or on the next morning; cannot swear distinctly to the mari; the notice was signed by me, and not by the notary; the certificate of protest is also in my handwriting.
    The defendant produced as a witness John Watts, Jr., who being sworn, testified, that he is a partner of the defendant since the 5th or 6th October last; has had no. agent or clerk in his .office; is a ship-broker: the office is attended exclusively by me and Mr. Place: in November last, nor at any other time do I recollect of any notice of protest served on me; never saw a notice in the office; defendant-was at the office every day; so was witness; office is on the second floor; there is another office in front; we occupied two rooms in company with a Mr. Elkins; other offices are up stairs; defendant lives in Norfolk street, and lived there last November.
    On his cross-examination he said that he had no particular recollection of the 7th November; am out of the office during the day for a half hour to the time, and it may have happened that myself and defendant were both out together, but this occurred rarely.

      George P. Elkins, was produced as a witness for the defendant: Occupies offices No. 69 South street, adjoining those of the defendant : has a separate entrance side by side of the defendant’s; communication between the two by a single door and open all the while; office of witness is smaller; never, to my recollection, received last November a notice of protest;,Mr. Place has no clerk.
    On his cross-examination, the witness testified that he employs no clerk — a woman cleans his office — I very rarely go out, but sometimes do, but never without either Place or Watts being there; but do not know that he remains there all the while during my absence.
    The counsel for the respective parties summed up before the court, and the Chief Justice dismissed the complaint. He subsequently in conformity to the Code, made and filed his decision in writing, stating the facts found by him, and his conclusions of law thereon, in the words following:
    That the note in controversy was presented for payment at the City bank, whereat by the terms thereof it was made payable, and that payment was demanded, but the note was not paid.
    That a written and printed notice such as is set forth in this case, was folded and directed to the defendant, by name, and left at his place of business on the day for that purpose mentioned in the case.
    That in the absence of the defendant at the time, the said notice was left -with a man at the office of the defendant, and that the person leaving said notice did not inquire who such man was, nor did he know whether the person with whom the notice was so left, was in any way connected with the office.
    That the person leaving said notice was the clerk of the notary, who protested the note, and that at, or immediately after, the time he made a memorandum in writing, in a book kept by him for such purposes, “ Nelson Place, to a man in his office.”
    That it is the custom of said clerk to inquire whether the person with whom he leaves such notices has to do with the office, unless he appears to be employed there.
    That my conclusions of law, from the above facts are, that the service of the notice of protest was not valid and sufficient, nor good in law, and that the complaint ought to be dismissed.

      JR. jffl. Mount, for the plaintiffs, appellants,
    argued as follows:
    As there is no dispute about the facts, the defendant furnishing no testimony contradicting the plaintiff’s witness, the question is solely one of law for the determination of the court. (Re-mer v. Downer, 23 Wend. 623; Spooner v. Bank of Salina, 8 Hill, 520.)
    The facts, therefore, which are presented by the testimony, and not the facts found by the Judge, must govern the judgment of the Court.
    The finding of the Judge contradicts the testimony in an important point, viz., his honor finding “that the person leaving the notice of protest did not know whether the person with whom the notice was so left was in any way connected with the office.”

      - The service of the notice of protest was valid, sufficient and good in law. Because — •
    1. It was left at the defendant’s usual place of business. (Story - on Prom. Notes, § 382; Williams v. U S. Bank, 2 Peters, 101; Bank of Columbia v. Lawrence, 1 Peters, R. 582.)
    2. That it was probable- — almost certain — that it was left with a person connected with the office. The person with whom it was left answered the questions of the notary’s clerk; and the defendants’ own witnesses show that the office was not left without some person in charge of it.
    3. The notary’s clerk testified that he could not remember all, and the memorandum in his book must be taken strongly in favor of the plaintiff, in connection with the testimony as to his custom to make inquiry. {Cole v. Jesup, 9 Barbour, S. C. R. 395.)
    4. It is not required of the notary to see that the notice is brought home to the party. {Bank of Utica v. Bender, 21 Wend. 643.)
    Lastly, the form of the notice was sufficient and good in law. (Story on Prom. Notes, § 390; Davis v. Coddington, 1 Corns. R. 186; Kverard v. Watson, 18 English Law and Eq. Reports, 194.)

      W. M. Evarts, for defendants, contra:

    The endorser having his residence and place of business in the same town as the place of presentment of the note for payment, notice of dishonor is required to be either by personal delivery or by leaving it at his place of business or domicil. (.Ireland v. Kip, 11 Johns, 231; iSmedes v. Utica Bk. 20 Id. 372; Sheldon v. Benham, 4 Hill, 129.)
    The delivery at the place of business must be, either by leaving the notice there in such suitable place as is accessible, or placing it in charge of some person in the employment of, or connected with, the party to be served with notice.
    The .proof failed to establish service of the notice in either manner.
    Delivery of the notice to a stranger does not affect the endorser, although he be casually in the endorser’s office during the absence of himself and all connected with him.
    The burden of proof is on the plaintiffs,- to show the notice carried to a point of actual or constructive delivery to the endorser.
    They do not satisfy this requirement by showing the notice in the hands of a third person whom they employed to deliver, but the endorser never employed to receive, the notice. This third person should have been called as a witness.
   Campbell, J.

In my opinion the service of the notice of protest was valid and sufficient. It was conceded that if the notice had been laid down on the defendant’s desk in his office, he being absent therefrom, it would have been sufficient. It cannot be, therefore, that the handing it to a person in the office of the endorser, in office hours, such person then being the only person there, would be insufficient. If giving the notice to a fellow boarder in a boarding-house, or leaving it, as in other cases, with a neighbor, when the endorser’s house was found closed, was sufficient, it seems to us very clear that leaving it in the endorser’s office in office hours, with the only person then found in the office, would be clearly sufficient. It has been held that a mere verbal notice, at the endorser’s place of business, to him, would be sufficient, and that if a notary called at the endorser’s office, in office hours, and found no person in to give the notice to, that was sufficient even if no written notice was left.

The judgment should be set aside, and a new trial be ordered.

Hoffman, J.

The only question in this case, is whether the service of the notice of protest was sufficient. And looking at the facts as they were proved upon the trial, the question may be stated in this form, whether service of such a notice, within the usual hours of business, and at the usual place of business of the endorser, in his absence, upon a person in such place, but not proven to be in some way connected with him, is good service ?

In Williams v. Bank of the United States, (2 Peters, 96,) the action was against an endorser. A notary public called at the house of the endorser, who resided in the city of Cincinnati, which he found shut up, and the door locked. He inquired of the nearest resident, and was informed that the party had left town on a visit. He left a notice at the house of a person adjoining, with a request to deliver it. This was held sufficient. In Crosse v. Smith, 1 Maule & Selwyn, 545, a call was made at the counting house of the drawer of a bill, during the hours of business. The outward door was open, but the inner locked. ' The party knocked, with noise enough to be heard, if any one had been within. Ko one appearing, he left the house, and took no further steps to give notice. Held sufficient, and this although some of the drawers lived at a short distance from the place. Lord Ellenborough said: “ The counting house is thé place where all appointments respecting the business, and all notices should be addressed, and it is the duty of the merchant to take care that a proper person be in attendance.”

The case of Bancroft v. Hall (Holt’s C. M. S. 476) contains also the rule that if a merchant’s counting house is closed within the usual hours for remaining open, a notice attempted to be left there will avail.

In The Bank of the United States v. Hatch, (6 Peters, 256,) a notice served on a fellow boarder at the lodging house of the party, he being absent, was held a legal notice.

In Goldsmid v. Maurit, reported in Chitty, p. 827, (and see an able account of it in Chitty on Bills, 12 Am. ed. p. 532, N. Y. Engl. ed. 472,) the suit was against endorsers of a bill, the plaintiff proved that they sent a clerk to the defendant’s counting house, between four and five in the afternoon. Ko one was there. The clerk saw a servant girl about the house, who said no one was in the way, and he returned having left no message with her. Lord Eldon told the jury that if they thought the defendant ought to have had somebody in the counting house at the time, he was of opinion that the plaintiffs had done all that was necessary, that the notice was in law sufficient, if the time was regular. The jury thought that the plaintiff had done all that was necessary.

Within the rule stated in these authorities, it may be considered that a person found in the place of business of a party to a note within regular hours of business, when the latter is absent, may be considered as representing such party. If no one were in the office, nothing more than a call, or that and leaving the notice under or upon the door would be sufficient. The case cannot be weakened by the fact of the notice being left with one apparently trusted with possession.

The order dismissing the complaint must be set aside, and a new trial granted, with costs to abide the event.


author: Hoffman, J.

text:
    The Farmers and Mechanics’ Bank of Kent County v. The Butchers and Drovers' Bank.
    The teller of a hank, having general authority to certify checks, under instructions not to certify without funds, colluded with a party, and certified his checks for $5,000 without funds. These were deposited with the plaintiffs in payment of a subscription to stock.

      Held, that the plaintiffs were bond fide holders for value, and as such entitled to recover.

      Held, also, that the delay of a year in presenting the check for payment did not . defeat their right to recover; the delay was not laches.

    The bank became the primary debtor, and was bound to hold the amount to meet the payment of the checks when presented.
    (Before Campbell, BoswortR and Hoffman, J.J.)
    January 11th, 1855.
    The case came up on an appeal from a judgment entered the 11th of November, 1854, upon a verdict, after a motion for a new trial was denied at Special Term. The verdict was for the amount of five certified checks on the bank of the defendants, and amounting with interest to $6,522.66.

      A. Schell, for defendants, appellants.

      H. A. Oram, for plaintiffs.
    The facts and the questions of law arising thereon sufficiently appear in the opinion of the court
   By the Court.

Hoffman, J.

The questions in the case arise upon the following facts:

T. A. C. Green, a dealer and depositor with the defendants, entered into a fraudulent arrangement with Ralph Peck, the teller of the defendants, by which the checks in question drawn upon the bank, were certified to be good. Green wanted to employ them abroad to aid in his purchase or speculations in stock, or in establishing a bank. The teller had a general authority to certify cheeks, qualified with the direction not to certify them without funds, and to enter them in what was termed a certification book. The teller violated his duty and instructions in these particulars. "We consider the plaintiffs as standing in the character of bonâ fide holders of the checks, without notice of the fraud. The plaintiffs passed the amount to Green’s credit as payment for his instalments upon the stock subscribed for; and such stock has been issued and is held by other parties. White v. The Springfield Bank, (3 Sand. S. C. Rep. 222,) is sufficient to justify the-conclusion that the plaintiffs are bond fide holders for value.

Apart from the circumstances of the fraudulent act of the teller in conjunction with Green, the question of authority to give the certificate appears to be settled in this court, by the case of Willett v. The President of the Phœnix Bank, (2 Duer, 121.) The evidence of an actual authority here is as strong as the admission on the pleadings there. There was in that case also fraud or laches on the part of the teller, as noticed in the opinion, by permitting the drawer of the check to withdraw the funds appropriated to the payment; but that was held not to be enough to excuse the bank.

The case as to the fraud is one of the abuse of an admitted delegated power on the part of an agent, and it is supposed to be now established law that in such a case, the principal is responsible to innocent parties.

The remaining point is, whether the plaintiffs’ rights were affected by the delay in presenting the check for payment for about a year.

Checks certified in this manner by bankers in England are used and deposited as bills of the bank.

They are in effect accepted bills, of exchange payable on demand at any time after such acceptance.

In the matter of E. Bruce, (2 Story’s Rep. p. 502,) Robson v. Bennett, (2 Taunton, 388.)

As between the holder and the bank, this acceptance renders the latter the primary debtor, and the cases relating to the duty of demand of payment within a reasonable time, become inapplicable. Those cases govern the relation between the holder and the drawer. (Little v. The Phœnix Bank, 2 Hill, 426.)

In the case of Willett v. The Phœnix Bank before cited, this court held, that such a certificate upon a check, was an unconditional engagement to hold a sufficient amount of the funds of the drawer to meet the check, and that delay on the part of the holder in demanding payment could not impair his right. It was not imputable as laches.

The charge and ruling of the Judge at the trial was consistent with these views of the law, and we see no reason to disturb the verdict or judgment.

Judgment affirmed, with costs.


text:
    Charles M. Talman v. Lemuel B. Hawxhurst, and Richard W. Mott.
    By the just interpretation of the first section of the act of April 5, 1848, relative to the rights of married women, the separate property of a married woman is subject to her disposition, in the same manner and by the same means as if she were a feme-sole.

      Held, therefore, that a mortgage duly executed by a married woman, of a piano, which wbb her separate property, was valid, and entitled the mortgagee to recover against a purchaser in good faith from the husband, although had the husband been the owner, the mortgage as against'the purchaser would have been void.
    Judgment for plaintiff affirmed, except as to damages.
    (Before Campbell, Boswokth, and Hoffman, J. J.)
    Jan. 19, 1855.
    Appeal from a judgment for the plaintiff, entered on the report of a referee.
    The action was brought for the delivery of the possession of a piano and piano-stool, which the complainant alleged were wrongfully detained by the defendants, and were worth $200.
    The answer denied the allegations of the complaint, and the cause was referred by consent to Robert Emmett, Esq., in May, 1854.
    It came now before the court on his report, and on a case settled by him, containing exceptions to his ruling on various questions of evidence on the trial, and also to his decision.
    The report of the referee is in these words:
    I, Robert Emmet, to whom this action and all the issues therein were referred by an order of this court, made on the twelfth day of May, 1854, to hear and decide the same, do hereby find and report:
    That on the 30th day of November, 1852, at the City of Albany, Theodore S. "Wood, and Anna Maria Wood, his wife, then residing in that city, executed and delivered to William C. McHarg, of the said city, a chattel mortgage upon a pianoforte, and certain other articles of household furniture, then in possession- of said Wood, and his wife, and thatym the first of December, 1852, the said chattel mortgage was filed in the office of the clerk of the county of Albany, where the said Wood and wife then resided. That the said Theodore S. Wood, and Anna Maria Wood, were married, in September, 1849, and that at the time of such marriage, and previous thereto, the said Anna Maria Wood was the owner of said piano. The said mortgage was executed as security for the payment of a promissory note of the same date, made by the said Theodore S. Wood, for one hundred dollars, payable three months after date, with interest, to the order of the said William C. McHarg, and that the said note was given for a bond fide debt, then due, by the said Wood to the said McHarg.
    That on the second of December, 1852, the said William C. McHarg sold and assigned the said chattel mortgage, and all his interest therein, to the plaintiff, for a good and valuable consideration ; and that on the thirty-first of October, 1853, such assignment was filed in the office of the said clerk. That after the execution of the said mortgage and assignment, the said piano and other articles, pledged by the said mortgage, continued in possession of said Wood and wife, in Albany, until about the first of May, 1853, when the said piano, with a stool belonging thereto, 'was sent from Albany to the city of New York by the said Wood, or by his direction. That some time between the first of May and the first of August, 1853, the said piano and stool were by direction of said Wood taken to a music store, No. 295 Broadway, in the city of New York, where they remained for about three months, and that while said piano was at the said store,' repairs were done thereto by order of said Wood, the cost of which repairs was ten dollars.
    That a bill and receipt, of which the following is a copy, was given by said Wood to the defendants:

      “New Yoke, August 1st, 1853.
    “HAWXHURST & MOTT,
    ‘ “ Bought of THEODORE S. WOOD.
    “One piano, No. 448, maker, E. I. Elsley, Albany, $100.
    “Received payment,
    “ THEODORE S. WOOD.”
    That the said piano and stool were subsequently delivered to the said defendants from the music store, upon an order, of which the following is a copy:
    “New Yoke, August 1,1858.
    “Messrs. H. CHICKERING & CO.
    “Please deliver to Messrs. Hawxhurst & Mott, the piano left with your firm this day, by myself, upon paying the necessary charges and upon presentation of this order.
    “ THEODORE S. WOOD.
    “ Piano, No. 448,
    “ Makers, E. I. Illsley & Co.,
    “Albany.”
    And that the charge of ten dollars for repairs done to the said piano while at the said music store, was paid by said defendants.
    That shortly before the commencement of this action, the plaintiff made a demand for said piano to the defendants, and exhibited to them a certified copy of the said mortgage, and of the assignment thereof to him, and that the defendants admitted that they had possession of the said piano, but declined to deliver the same to plaintiff.
    That the value of the said piano when the defendants obtained possession thereof, (including ten dollars paid by them for the repairs done thereto,) was one hundred and ninety dollars; and that the rate generally charged and paid for the use of such pianos in the city of New York, is five dollars per month.
    And I do further find and report, that the said piano, and piano-stool belonging thereto, were the sole and separate property of Anna Maria Wood, wife of the said Theodore S. Wood, at the time when the said mortgage thereon was executed and delivered to said William C. McHarg, and that she had power to convey and did convey the same by said mortgage to the said McHarg.

      That tHe assignment of said mortgage.by the. said- McHargto the plaintiff was a.valid transfer thereof, and of all the rights of the said MeHarg nnder the same.to the plaintiff. .That the said mortgage was given for a good and valid consideration, and in good faith, and that the evidence of such consideration, and good faith is sufficient to rebut any presumption of fraud arising from, the fact that the possession of the mortgaged chattels was not changed upon or after the execution of the mortgage; and that the sale of the said piano and stool to the defendants by the said Theodore S. Wood, and the delivery thereof to them by his order, were void as against the rights of the plaintiff.
    I do therefore decide the issues in this action as follows: .
    1. That the said piano and stool mentioned in the complaint, were at the time of the commencement of this action, the property in law of the plaintiff, as. mortgagee thereof, and that he was then entitled to the possession thereof.
    2. That the defendants became possessed of the said piano and stool.
    3. That since the commencement of this action the defendants have wrongfully detained the said piano and stool from the plaintiff, and ..
    4. That the •value of said piano and stool, (exclusive of the repairs thereto, which have been paid for by the defendants,) is one hundred and eighty dollars..
    I do accordingly report as my decision of this action,, that the plaintiff is entitled to judgment for the delivery of said piano.and stool to Him by the defendants, and for damages for the detention thereof from.the 19th day of November, 185.3, (being the time of the commencement of this action,) at the rate of five, dollars per month, which damages at the date of my report amount to fifty dollars. .. .
    R. Emmet, Referee.
    New York, Sept. 20th, 1854.
    The exceptions taken on the trial are deemed unimportant and are therefore omitted. They were, in a measure, abandoned on the argument, and hence are not noticed in the opinion of the court.

      O. P.KirUand, for the appellants, the defendants,
    contended that the continued possession of the mortgagors after the mortgage became forfeited, rendered it fraudulent and void as against creditors and purchasers; That the assent of the wife to the acts of the husband ought to be presumed, and that to permit the plaintiff to recover would lead to great injustice and to great insecurity in the purchase of personal property. He cited 2 R. S. 195, § 5; 9 Wend. 198; 12 id. 279; 23 id. 653; 8 Barb. 102, and other cases.

      W. G. Brown, for plaintiff, contra,
    cited 12 Wend. 61; 1 Hill, 472; 17 Wend. 53.
   Hoffman, J.

We think that all the material facts are correctly found by the referee, and shall therefore confine our attention to the questions of law arising upon the facts, as he has found them.

1st. Independently of the question arising from Mrs. Wood’s ownership of the piano before her marriage, the case is substantially this: A mortgage is given at Albany on the 30th of November, 1852, and made valid there by a proper filing. It was to secure a note at three months; and the debt was due, therefore, about the 3d of March, 1854. In May, 1853, the piano was sent to New York, treated and repaired by direction of Wood, as his property, and sold as such to the defendants, in August, 1853. The testimony may not establish that Taiman positively consented to the removal of the piano. It does establish that he knew of the intended removal of the mortgagors to New York, and with their furniture.

That McHarg could not sustain this mortgage, which was never filed in New York, against creditors or bond fide purchasers, seems perfectly clear. (Griswold v. Shelden, 4 Comstock, 582, and cases cited.)

2d. The next and important question is, whether the defendants were bonâ fide purchasers. It is only as such that they can resist a claim founded upon the mortgage. Wood could not, and (apart from the question as to the wife’s position under the statute of 1848) she could not resist it. The defendants stand as purchasing from one who had the possession and control of the property, and they do not appear to have known of the wife’s rights in such property.

The difficulty is, that they purchased from Wood alone. If he had not a particle of title, how could they obtain a right as purchasers to contest the claim of the plaintiff. A title obtained from Chickering, with whom the piano was deposited, would have the same effect, and no greater.

The operation of the statute of 1848 upon the facts of this case, is either -to render every act of the wife as to this property precisely of the same legal force, as if she were sole, or to avoid all her acts from the beginning. In the former case the whole legal right of Mrs. Wood was gone on the Bd or 4th of March 1853, and the title perfected at law in the plaintiff. There remained only a right to redeem in equity. (Patchin v. Pierce, 12 Wendell, 61; Filler v. Acker, 1 Hill, 473.) She then could not have prevented the plaintiffs from taking possession; and it is justly observed in one of the cases, that a purchaser does not defeat a fraudulent transfer by a right derived from his assignor, but by force of the statute. The former had no such right himself, and could not delegate or transfer it.

The question then is, whether the acts of the wife in regard to this property were void from the beginning. The learned counsel for the defendants insists, that she was disabled to make any such mortgage, or any disposition of her 'property. In other words, that a common law disability continued in her to contract for the transfer of her interest, or to transfer it at all. We think the operation of the statute is precisely the reverse.

The marriage here took place in the fall of 1849, and the property was held by her at that time. The first section of the act of April 7th, 1848, governs the case. “ The real and.personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts; and shall continue her sole and separate property, as if she were a single female."

It seems impossible to avoid the conclusion, that under this language, the wife has the identical ownership and powers of disposition, as if she had remained .single. She is protected against her husband’s sole disposition of the property, or any claim of his creditors; but her own power seems unqualified and absolute. So it appears to have been regarded in Van Sickle v. Van Sickle, 8 Howard, 267.

The analogy of the provision to the old equity doctrine in relation to a married woman having separate property, strengthens this view. She was a single woman as to such property, except as restricted by the instrument; and she could bind it by any papers showing an intention to do so. Indeed, the North American Coal Co. v. Dyett, carried it so far, as to make the separate estate liable for coal furnished to it, (being a manufactory,) on the order of an agent. Indeed the case goes far to establish a liability without specific charges, but for debts generally. (7 Paige, 12-20; Wend. 370.)

In this view of the case, the right of the plaintiff as against both wife and husband had become perfect as to title, and only subject to an equity to redeem. It had become as to mere strangers absolutely perfect; and to resist it, a bonâ fide purchase must be shown from the owner. That could not be done, for the husband had no title.

It may be that the actual consent of the wife to a sale by the husband would have been sufficient, without her uniting in an actual transfer. But there is nothing in the case” to show this. The result which the referee has arrived at we consider right.

Another question is, as to the damages allowed by the referee. He finds the value of the piano to be $180; and holds that the plaintiffs are entitled to judgment for that and for $50 damages,. for the detention from the commencement of the action at the rate of $5 a month, to the report. We are satisfied the plaintiffs had no right to such damages.

Judgment affirmed, except as to the allowance of $50 for damages, which is to be deducted, without costs of the appeal to either party.


author: Bosworth, J.

text:
    Barth, Respondent, v. Walther, Appellant.
    In an action to recover for personal property sold and delivered, and claiming a specific balance due, a judgment entered on the report of a referee, for a less sum than the balance claimed in the complaint to be due, will not be set aside, although he received proof that more items in number were sold, and their aggregate value was greater, then the complaint or bill of particulars specified, when no objection was made at the trial to the reception of the evidence, and there is no reason to suppose that injustice has been done.
    In such a case, an order may, properly, be made, conforming the complaint to the-facts proved, without imposing the condition that the plaintiff consent to a new trial and pay the costs of the former trial.
    (Before Campbell, Bosworth, and Hoffman, J.J.)
    Jan. 19; Jan. 27, 1855.
    The complaint states a cause of action arising upon a sale between certain dates by the plaintiff to tbe defendant of thirty-six dressed hogs, alleged to be worth $327.87, admits a payment of $150 on account, and claimed that a balance was due of, and prayed judgment for, $177.87, with interest from the 15th of October, 1854. A bill of particulars had been rendered, which stated plaintiff’s claim to be thirty-six dressed hogs, weighing 3,629 lbs., at nine cents per lb., and that they were worth $327.87.

      L. Livingston, the referee to whom the action was referred, reported that the plaintiff sold forty dressed hogs, of the average weight of 110 lbs. each, that the market value was nine cents per lb., and that they were worth $396. That the defendant had paid to the plaintiff, on account of them, $250, and that the plaintiff was entitled to a judgment for $146, the balance. No objection was made on the trial before the referee, to proof being given that forty hogs were sold, and the proof that the market valué was nine cents per pound was elicited by the defendant.
    After the referee reported, and before judgment was entered, a Judge of this court made an order allowing the complaint to be amended so as to conform to the facts found by the referee and appearing by his report, in respect to the amount due to the plaintiff.

      A judgment haying been thereupon entered upon the report of the referee, the defendant annealed from the judgment to the General Term.

      Ratcliff and Wheedon, for the appellant,
    insisted, that as the complaint and bill of particulars, alleged a claim, based on the sale of thirty-six hogs, weighing 3,629 lbs., and worth $327.87, the referee erred in receiving proof of the sale of forty hogs, worth $396, although he had reported a less sum due to plaintiff, than the complaint stated; and that the order conforming the complaint to the facts proved was erroneous, and at all events could only have been made, upon the terms of granting to the defendant a new trial, and paying his costs of the trial already had.

      Ashhy and Macdonough, for respondent.
   By the Court.

Bosworth, J.

The Code allows any amendments to be made which will conform the pleadings or proceedings to the facts proved, when the amendment does not change substantially the claim or defence, § 173.

The claim substantially was that the defendant owed the plaintiff a balance of $177.87, for dressed hogs, sold and delivered between the 1st of August, 1853, and the 1st of November, 1853. The substance of the defence was, that not over $25 was due to the plaintiff. The complaint stated that thirty-six hogs were sold and delivered. This the answer denied, by denying each and every allegation of the complaint, but it did not state how many had been delivered.

The complaint said, those delivered were worth $327.87, and' $150 had been paid on account. The answer averred they were not worth over $260, and that $250 had been paid on account.

As has been stated, no objection was made on the trial to the plaintiff’s proving that he delivered forty, that their average-weight was 110 lbs. each, and the proof given by the defendánti of their market value was adopted by the referee. The amendments made conformed the pleadings to the facts as found, upon evidence given, and submitted to the referee without objection.

The sum reported in favor of the plaintiff is less than the amount sought to be recovered, and this case, therefore, differs from Corning v. Corning, (2 Seld. 97.)

In Spaun v. Veeder, (5 Cowen, 503,) a plaintiff was allowed to amend his bill of particulars after a new trial granted, and it had been twice subsequently noticed, upon paying the costs of the motion, unless the defendant varied his defence, in which event it was to be on payment of all costs subsequent to the plea.

In Saltus & Saltus v. Bayard and others, (12 Wend. 228,) a plaintiff, after a cause had been at issue two years, and twice noticed for trial, was allowed to amend his declaration, on payment of costs of the motion only, unless the pleas were withdrawn, or a new defence became necessary.

In Every v. Merwin, (6 Cowen, 360-368,) the court allowed an amendment to be made after a report of referees, and after a motion to set it aside, to avoid the effect of a variance, on payment of the same costs, as if the amendment had been made previous to the hearing before the referees.

We think the amendment was such a one as the Code authorized, and was designed to provide for, and it not appearing from any paper read in opposition to the motion to amend, that granting the motion could work any injustice to the defendant, the order should not be disturbed, nor the judgment of the referee reversed, merely because the referee found, on evidence not objected to, that forty instead of thirty-six hogs were delivered.

The objection that the evidence given was insufficient to warrant the finding of the referee, cannot prevail.

Though slight, and not very satisfactory in consequence of its want of precision, it was proper to be submitted to a jury, and if credited .warranted the finding.

Both 'parties did their business very loosely. This is as well illustrated by the evidence, relied on by the defendant to prove payments, as by that given by the plaintiff of the number of hogs he had delivered. We do not think it so apparent that injustice has been done, that it is our duty to interfere with the report. The judgment must, therefore, be affirmed.


author: Campbell, J.

text:
    Wm. Paton, and others, Respondents, v. Charles Lent, Appellant.
    An 'averment, in an action against an endorser, that the note was presented to the maker and payment demanded, is proper, when it was in fact presented at his last place of residence and business, from which he had then recently removed, and, after diligent inquiry, he could not be found, so that it could be presented to him personally.
    The contents of a notice to the endorser may be proved by parol.
    It is sufficient notice to an endorser, though residing in the city in which a note is protested, to mail it to him, when he resides some eight miles from the place where it was protested, and there is a post-office at the place where he resides, no point being made that he does not usually receive his letters at such post-office.
    (Before Campbell, Bosworth and Hoffman-, J.J.)
    Jan. 19; Jan. 27, 1855.
    This action came before the court on appeal from a judgment. It was tried on tlie 8th of May, 1854, before Mr. Justice Duer and a jury. It was commenced against the defendant and one Theodore Lent. The complaint states that Theodore Lent, on the 12th of May, 1853, made and delivered to Charles Lent, his promissory note, payable four months after date, for $500, and that said Charles Lent endorsed and delivered it to the plaintiffs, and that, at its maturity, it was duly presented to the maker and payment demanded, that it was dishonored, protested, and notice served on Charles Lent the endorser; that the plaintiffs -are the lawful owners, &c., of said note, and that the defendants are indebted to them thereon in the sum of $500.75, with interest, and demands payment for that sum, with costs.
    The answer of the defendant, Charles Lent, puts in issue the presentment of the note to the maker, and demand of payment of him, and the giving of notice thereof to the said defendant, the ownership of the note by the plaintiffs, and the indebtedness charged by the complaint.
    Theodore Lent put in no answer.
    The Notary testified, that on the 15th of September, 1853, he presented the note at the maker’s last place of business in Broadway, and where shortly- prior to that date he was carrying on business, and also at bis last place of residence, tbe maker of tbe note not being found at either place. That be inquired at both places, and at other places, and of tbe plaintiffs, and examined the Directory, to ascertain the residence of tbe maker, and of . Charles Lent. He could not ascertain where tbe maker could be found. Tbe Directory stated that Charles Lent resided at King’s Bridge, at which place it was admitted there was a post-office. The Notary, thereupon, protested the note, and on the 16th, about the middle of the day, deposited a notice, in proper form, in the post-office, in New York city, directed to Charles Lent, at King’s Bridge.
    • The defendant objected to evidence of facts to excuse a personal presentment' of the note, and demand of payment, on the grounds that no such facts were alleged, and also to parol evidence of the contents of the notice mailed to the endorser. The objections were overruled, and defendant’s counsel excepted.
    The Notary’s certificate of presentment, demand of payment, protest, and of notice to the endorser, stating them to have been made,- as he had testified, were then read-in evidence, and the plaintiffs rested.
    The counsel for the defendant, Charles Lent, thereupon moved the court for a dismissal of the complaint, on the grounds:
    L -That the said complaint avers a presentment of the promissory note on which the suit is brought, and a demand of payment of the maker, and not facts to excuse such presentment and demand, and the evidence shows no presentment and demand, but only facts to excuse them.
    II. That the evidence does not show due diligence on the part of the plaintiffs to ascertain the residence of the maker.
    HI. That due and sufficient notice of the dishonor of the note was not shown to have been given.
    IV. That the evidence is insufficient to sustain the action.
    The court denied the said motion for a dismissal of the complaint, and the counsel for the defendant excepted. The court then directed a verdict to be taken for the plaintiffs for the amount claimed, with interest.
    The jury, under the instructions of the court, rendered a verdict for the plaintiffs against the defendant, for five hundred and thirty-three dollars and thirty-six cents; and a judgment having been entered on the verdict, the defendant Charles lent appealed from it to the General Term.

      Wm. S. Rowland, for defendant and appellant.

      -Bellows, for plaintiffs and respondents.
   By the COURT.

Campbell, J.

Enough was done by the notary, to make a proper presentment and demand of payment. When the maker of a note, just, before it matures, abandons his former residence and place of businéss, and cannot be found after diligent inquiry, the note may be protested. In such a case it is proper, if not indispensable, that the note should be presented at his former residence or place of business. (Spies v. Gilmore. 1 Coms. 326.)

In this case, it was presented at both places. Under such circumstances, it was proper to aver presentment to the maker. The evidence establishes that it was presented to him, and is sufficient to support the allegation of presentment contained in the complaint.

There is nothing, in the objection, that the contents of the notice to the endorser cannot be proved by parol. The contrary has been so uniformly held, that the citation of authorities is unnecessary.

Notice was duly-mailed to the endorser. He resided some eight or ten miles from the place where it was protested. His residence and the place of protest were in the same city. But the limits of the city are coextensive with those of the county. When the place of protest and of the residence of the endorser are more remote, than in many instances, when in different towns of the same county, there is no reason why notice by mail should not be sufficient, when there is a post-office at the place where the endorser resides, and no suggestion is made, or proof, offered that he does not usually receive his letters at such post-office: (Ransom v. Mach. 2 Hill, 588.) We think there was no error committed in the decisions made at the trial, and that the judgment should be affirmed.


author: Slosson, J.

text:
    Simeon Draper v. The Commercial Insurance Company. The Same v. The Columbia Insurance Company.
    The implied warranty of the sea-worthiness of a vessel insured, requires, emphatically, that the master shall be a person of competent skill, prudence and experience, to conduct the navigation on the voyage insured.
    The warranty is not complied with when the master is himself unskilled in navigation, by the fact that there is a person on board of competent skill and experience, to whom, as sailing-master, or by some other name, the owner of the vessel has entrusted the care of navigating her.
    It is as essential to success in the navigation of a vessel that the person who is to conduct it shall possess full and paramount authority to enforce obedience to his orders, as that he shall possess the requisite prudence and skill.
    It is, however, to the master alone that, both at common law and by statutes, this controlling authority belongs. He is the only person whom the subordinate officers and the crew are bound implicitly to obey. As the warranty of seaworthiness, by its just interpretation, requires that the necessary skill and the necessary authority shall be united in the same person, when they are not so united the warranty is broken and the insurers discharged.
    The verdicts for the plaintiffs in the above cases having been taken by consent, subject to the opinion of the court upon all questions of fact as well as of law, and it appearing from the evidence that the person who alone could be deemed in law the master of the vessel, was a person wholly unskilled in navigation, but that there was a sailing-master on board of competent skill.

      Held, that the proof was conclusive to show that the vessel was unseaworthy when she commenced her voyage, and, consequently, that the verdicts for the plaintiffs must be set aside, and verdicts and judgments thereon be entered for the defendants.
    (Before Boswortu, Hoffman and Stossox, J.J.)
    Nov. 24, 25, 1854;
    Feb. 10, 1855.
    These actions were on two policies of insurance, — one by the Commercial Insurance Company for $9,000, the second by the Columbia Insurance Company for $6,000. The, insurance in each was on the steamer Albatross, valued at $60,000, on a voyage at and from Uew York to Vera Cruz, and back to New York. The complaints were in the usual form, and averred a total loss by the perils of the sea, and demanded judgment for the whole sums insured, with interest.
    The principal defence was, that at the commencement of the risk, the vessel was unseaworthy, from the incompetency of the master and the insufficiency of the crew.

      The causes were tried together, before Bosworth, J. and a jury, on the 24th of May, 1854. On the trial, the making of the policies, the due service of preliminary proofs, and the happening of the loss were admitted.
    Some witnesses were orally examined, and the depositions .of several were read on the question of the sea-worthiness of the vessel, the circumstances of the loss, which was alleged to have been occasioned by gross negligence, and the ownership of the vessel, the interest of the plaintiff as owner being denied, but as the decision of the court at General Term was placed on the sole ground of the unseaworthiness of the vessel from the ineompetency of the master, it is deemed unnecessary to state the evidence upon other questions.
    The following are the material facts, as proved upon the trial, relative to the appointment and qualifications of the master:
    The vessel was registered at the Custom House in New York on the 30th of March, 1853. In her register the plaintiff is stated to be sole owner, and Alexander H. Greene, master, and a citizen of the United States.
    The ship sailed on the voyage in question on the 1st of April, 1853, under the command of Captain Greene as to her direction, but under the exclusive control of Richard McNeil as to her navigation.
    McNeil had been a seafaring man for about twenty years, two years of which he had served as first mate, and ten years as captain, in sea-going vessels. He became attached to the Albatross, as mate, in July, 1852. She was then an English vessel, running from New York to Quebec and intermediate ports. In January, 1853, and while she was still under the English flag, he became master of her and made one voyage in her in that capacity from New York to Yera Cruz, and thence back by way of New Orleans and Havanna. On her return to New York the vessel became the property of Mr. Draper, (plaintiff in this action,) and was registered as an American vessel, and her flag changed. McNeil was retained, not as captain, but as sailing-master of the vessel. The reason of the change was that McNeil was a foreigner, and the registry act requires that both owner and master should be citizens. McNeil was a British subject.
    No person but McNeil had any charge of the nautical management of the ship, and he alone gave orders. The proof is that he was a capable and competent seaman.
    Captain Greene acted as owner of ship, or supercargo. He had no control, and attempted no control, as to the sailing of the ship) or its management at sea. During the whole voyage, he did nothing more about the ship than a passenger, and was unwell the whole time, and part of the time confined to his bed, but not from sea-sickness. Greene was twenty-seven years of age, and knew nothing of navigation, having never been to sea before. He had the direction of the voyage, and the vessel sailed under his direction, — that is, wherever he told McNeil to take the ship, he took her, and remained as long as he directed. He was employed by Draper as purser, to take charge of the money matters of the ship, and the first he heard of his name being inserted as captain in the register was only three or four hours before the advertised hour of sailing, and on the day previous to their actually sailing. He had written instructions from Draper, directing him to take charge of the financial matters of the ship, while McNeil was to have the whole charge of the navigation of the vessel. Greene was not, however, on board as captain nor called such. He signed the shipping articles as master, and cleared the vessel at New York as such, and also signed the bills of lading. He also signed the protest at Yera Cruz, in which he is described as master. The protest is under oath. McNeil’s name does not appear in the protest, nor in the extension of the protest. He also executed the bond at the Custom House in New York before sailing, with sureties in respect to crew, in which he is described as master.
    Yerdicts were taken by consent for the plaintiff, subject to the opinion of the court at General Term, upon all questions of fact as well as of law, with liberty to either party to turn the case to be made into a special verdict or bill of exceptions.

      H. M. JEvarts and D. Lord, for the plaintiff,
    insisted that he was entitled to judgment, and on the question of unseaworthiness, made and argued the following points:
    I. The defence of unseaworthiness is not sustained by the proofs.
    I. There is no evidence in support of the suggestions of unseaworthiness, except in relation to the incompetency of the master or commander.

      2. That the steamer was furnished with a competent, experienced, and skilful nautical commander; that the navigation and discipline of the ship were exclusively entrusted to him, and exclusively exercised by him, and that he had under him the usual and sufficient corps of subordinate officers, and an adequate crew, are facts uncontroverted.
    3. The presence on board of a purser or clerk, representing the owner in the financial interests of the voyage, was immaterial in respect of the navigation or discipline of the ship and its seaworthiness;
    II. The insertion of Mr. Greene, the purser or clerk, as master in the ship’s register, does not affect 'the seaworthiness of the ship.
    1. The question of seaworthiness is always one of substance, and not of form. The implied warranty on the part of the assured required that the navigation of his ship should be entrusted to competent skill and experience, and that the conduct of that trust should be sustained by due authority over the subordinate officers and crew.
    2. Oapt. McNiel received and exercised this trust, and derived both from the owner and the law," by whatever title of office he might be called, the due authority. (Act U. S., March 3, 1835, §§ 1, 2, 3, vol. 4 St. at Large, p. 775; Act U. S. March 8, 1825, § 10, Id.,p. 115.)
    III. The ship’s register was in all respects lawful and valid. (U. S. Registry Act, Dec. 31, 1792, vol. 1 St. at Large, p. 287.)
    The whole scope of the Registry Act is to confine the benefits of American nationality to such vessels as are registered in conformity to it. The substantial requisites to the obtaining of a register, are simply that the vessel should be the property of citizens, and as such property, be under the control of á citizen. These requisites were complied with in this case. (Act, §§ 2, 4, 13, 15.

      F. B. Gutting, for the defendants,
    made the points, and cited the authorities that follow:
    I. The Albatross was bound by the warranty of sea-worthiness to have had a master of competent qualifications, and of nautical skill and experience; a sufficient crew, in numbers as well as in capacity; and to have been properly equipped for the voyage.

      Greene, tie master, possessed no nautical skill or experience, and was destitute of all tie qualifications necessary to tie responsible duties of tie station.
    He iad never before been to sea.
    Tie plaintiff, wien ie concedes tie incompetency of Greene, attempts to siow tiat in fact ie was employed as purser, to collect tie freigit bills and passage money.
    Tie plaintiff is estopped from setting up tiat Greene was not master for tie voyage; ie is named as suci in tie register, in tie skipping articles, in tie usual bonds given to tie collector of tie port, in tie bills of lading, protest,, and in all tie documents tiat are put forti in beialf of tie skip.
    Unless Greene was master, tie steamer was without a master, for McNeil testifies, tiat ie was not captain.. He stood no regular watci.
    Tie warranty tiat tie steamer was- commanded by a master, of competent qualifications,, is not satisfied by employing a substitute merely to navigate the vessel. Tie whole duty and responsibility of tie position ought to be upon tie same person; and ie must be competent for iis station.
    Strictness of compliance with this warranty is demanded by tie highest considerations of public policy, whether tie duties, powers, and obligations of tie master are considered with reference to his owners, tie freighters, passengers, underwriters, "or tie regulations of tie merchant service provided by Congress. (3 Bos. & Pul. 158, Fanshaw v. Ghabert; 2 Wash. C. C. R, 262, Grader v. the Phil. Ins. Go.; Curtis’s Rights and Duties of Merchant Seamen; Act of 28th Eeb. 1803, ci. 20, p. 1790, ci. 56.)
    II. By tie laws of the United States, McNeil, being a British subject, could not be master, without subjecting tie steamer to additional tonnage duty. (Act 1st March, 1847, ch. 204, §§ 3,5, 6.)
    Tie plaintiff having appointed Greene master, in order to avoid tie penalties of the law, the court will not aid him in an evasion of the laws and of tie commercial policy of tie country, by accepting McNeil as an equivalent for a competent master. (4 Mason, 172, OKI v. Eagle Ins. Go)

    Greene’s authority as master, was recognized on board tie ship as absolute, except in tie mere details of navigation; and tiat by McNeil himself.
   By the COURT.

Slosson, J.

That the loss of the vessel is to be attributed, primarily, to the negligence and carelessness of the crew, or of such portion thereof as were at the time especially entrusted with its safety, we think on the evidence there can be no reasonable doubt — but as the proximate or immediate cause of the disaster was a peril insured against, the defendants would be liable if not discharged on other grounds. (Gates v. Madison Co. Mer. Ins. Co. 1 Seld., 478; Mathews v. Howard Ins. Co. 1 Kernaut.)

The true question, and the only one which we deem it necessary to consider at length, is, whether the vessel was unseaworthy at the commencement of the voyage, by reason of the conceded incompetency of. the master, (Captain Greene,) as a navigator, there being, nevertheless, another person on board, (Captain McNeil,) to whom was especially entrusted by the owner the duty of navigating the ship, and who is admitted to have possessed competent skill for that purpose. The question is entirely a novel one, and its solution must depend on a correct application of the general principles upon which the doctrine of seaworthiness rests. The implied warranty of sea-worthiness has its foundation in sound principle, and involves the element of good faith as between the contracting parties. The consideration of the contract as respects the insured is indemnity against extraordinary perils. As respects the insurer, it is the chance of gaining the premium; and to enable him to do this, the ship must be in a condition, when the policy attaches, to resist ordinary-perils and to accomplish the voyage under ordinary risks; and so essential is this, that the law does not require any express covenant' ' on the subject, but absolutely avoids the contract, if in fact this state of sea-worthiness does not exist. The law implies, from the very nature of the contract, an undertaking on the part of the insured that the vessel shall be capable of performing the voyage, and the violation or breach of this undertaking, technically termed a warranty, and which is, in effect, a condition precedent, defeats and puts an end to the contract, whether the loss be attributable to the unseaworthy condition of the vessel or not. The whole consideration fails as respects the insurer, and in the intendment of the law the contract never existed, the risk had never an inception. (1 Marsh. Ins. ch. 5, §§ 1, 8 ; T. R. 192.)

To constitute this sea-worthy condition; the vessel- must be tight, staunch and strong — she must be equipped with everything essential to her navigation during the voyage, and she must have a sufficient crew, both as to .numbers and efficiency; and last, though by no means least, she must have a master' or commanding officer of competent skill, prudence and experience, at least, to conduct the navigation of the vessel, if not to meet the responsibilities of those sudden and decisive emergencies in which by his own act he often determines the rights and liabilities of. the parties to the contract. (1 Marshall, above cited; Park. Ins., ch. 11; 7 T. R. 160; 3 Kent, 7th ed., 356-7; 5 Mass. Rep.; 11; 1 Arnould’s Ins., 684.)

In every definition of sea-worthiness to be found in the books, a master , of competent skill is invariably included. It is contended in the present case, and for the first time, -it is believed, that if the-skill be present, it is by no means essential to the warranty that it reside in the master, and that it equally answers the requirements of the condition, if it be found in another officer or person entrusted with the navigation simply. It-is said that this does not dispense with the necessity of a commanding officer known as master or captain; but thát the duties of'the latter extend to a variety of objects other than that of mere navigation, and that a vessel may be as well navigated by another person of equal skill as by the master himself; and that as the warranty requires only that the vessel shall be in a condition to accomplish the voyage under ordinary perils, it is substantially complied with when the requisite qualifications to successful navigation are present, however distributed as to persons. That, for example, a vessel is as sea-worthy within the meaning of the warranty, with a master unskilled in navigation, but with a competent sailing-master, or other person to conduct the navigation, on board, as though the master were himself possessed of all the necessary qualifications of a skilful navigator as in the case at the bar. It may well be doubted whether it is not a sufficient answer to this to say that a contrary understanding of the nature and definition of sea-worthiness having, for a long time, if not always, prevailed, the parties may be said to have contracted in reference to the latter, and that the defendants are now precluded from setting up a different interpretation of their engagement. But apart from this, there are considerations which, in our judgment, render this novel theory untenable. It is as essential to success in the navigation of a vessel that the person, 'whoever he may be, who is entrusted with it, should be clothed with the requisite authority to enforce his commands, as that he should possess the necessary skill in the science itself. The nature of the employment requires perfect subordination on the part of the seamen and inferior officers. The exigencies of the navigation itself frequently require not only consummate skill and presence of mind on the part of the person conducting it, but the exercise of an absolute authority, which calls for, and can enforce, immediate and unquestioning obedience. “ The service in which he (the master) is employed is one of uncommon peril, not only requiring great skill, but often demanding great promptitude of decision and action, and admitting no time of delay for deliberation, reasoning or expostulation. Upon him is imposed the obligation to meet and provide for those emergencies, and if there is not an instantaneous obedience to his orders, it may involve the loss of the ship and of all who are in it.” (Flanders, 85, §54.)

Hence, it is requisite that both essentials — the skill and the authority — should be united in the same person; otherwise, in the emergency which calls for their exercise, the catastrophe to be avoided, might become inevitable. Indeed, so palpable is this truth, that the able counsel who advocated the doctrine in question were forced to admit that with the nautical skill must be combined the power of discipline; but they contended that this power did actually reside in McNeil, acting either by a deputed authority from Greene, or by authority derived from the owner of the vessel, and that disobedience to McNeil contrary to the orders of Greene, would be disobedience to the master himself, and of course punishable as such. There is no evidence that McNeil acted by any deputed authority from Greene, even if the latter could depute such an authority. His whole power was derived from the commission which he held from Draper, the owner of the vessel. But apart from this, the theory of the plaintiff’s counsel requires that Greene should acquiesce in, and enforce, the orders which McNeil was to give; and it virtually concedes that in the absence of such acquiescence, or of unanimity 'bet-ween them, the skill might become inoperative from the want of the necessary authority to enforce its orders.

Until therefore, it is shown that Greene, as master, was nnder a necessity of enforcing the orders which McNeil as navigator might give to the seamen and subordinate officers, the whole theory lacks the only element which can give it plausibility. Such, then, being the necessity of authority combined with skill, in the person entrusted with the navigation of the vessel, the warranty, when it calls for the skill, calls also for the authority, and whoever be the officer, or person, in whom the latter resides, must be the one to possess the former, within the meaning of the contract. The law for the protection of commerce, with all its entrusted interests of property and life, has wisely clothed one person, and but one, with all the authority requisite to the security of those interests, and the successful discharge of the hazardous duties involved in the navigation of the vessel,- and that person is the master. Not only does the general maritime law give him this authority, but express statutes have defined and in some instances enlarged it; and have moreover, prescribed penalties for disobedience, and established through the medium of shipping articles, a contract between the master and seamen, which creates mutual rights and obligations. (1 Stat. at large, 1790, ch. 29.)

Among other things these statutes provide, that a seaman who has not signed these articles, shall not be bound by the regulations, nor subject to the penalties and forfeitures contained in the act, and which regulations, penalties, and forfeitures, are prescribed for the more effectual protection of the authority of the master, as well as the rights of the seaman; neither could he be guilty of desertion within the meaning of the statute, which defines that offence to be, the absenting of himself by a seaman who has signed a contract for the voyage, without leave of the master, or officer commanding in the absence of the master. There are also statutes providing for the punishment of mutiny against the master, and for the punishment of the master himself, who, in a foreign port, forces a seaman on shore. (Act March 3, 1835, vol. 4; Stat. at large, p. 775 ; Act March 3, 1825, same vol. p. 115.)

The shipping articles are to declare the voyage, and the time for which the seamen are shipped; and it has been held, that in case of a deviation in the voyage so declared, a refusal by the crew to perform duty is justifiable, and not a revolt within the meaning of the statute of 1835. (United States v. Matthews, 2 Sumner, C. C. R. 470; Abbot on Shipping, Story & Perkins’ edition, 244.)

It is true, the contract created by the shipping articles, though entered into between the master and seamen, is not confined to the original master with whom the voyage is commenced, but extends to any other who may in the course of the voyage, be substituted in his place; yet the party so substituted must be one succeeding to the entire authority and office of master. (United States v. Cassidy, 2 Sumner, C. C. R. 582.)

The power of punishment rests, nnder the general maritime law, exclusively with the master, while on board, nor can a mate or other subordinate officer inflict punishment on the seamen when the master is on the vessel, except by his authority, express or implied, and if such punishment should be inflicted when the master is present and can prevent it, and does not, he is personally responsible. (U S. v. Taylor, 2 Sumner, C. C. R., 584; Flanders on Shipping, 85, §§ 53 and 99, §§ 72-3.) It is true an emergency may occur, in which for the general safety it may become necessary that a subordinate officer should enforce immediate obedience to his own orders by the exercise of violent or forcible means, but (in the language of Judge Story) this is not so much a punishment for the offence of disobedience as a necessary means of compelling the performance of duty at the very moment when it is necessary to enforce prompt and immediate obedience.” Neither can the master delegate to any subordinate officer a general authority to inflict punishment at his own pleasure for the offences of the crew; the master stands in some respects in the relation of a parent to the crew, and is bound to exercise his own judgment as to the time, the manner, and the circumstances under which punishment is to be inflicted on the crew for any past misdemeanors, or any present misdemeanors not immediately and materially affecting the ship’s service or security.” The power of dismissing or removing a seaman rests solely with the master; (3 Kent, 7th ed., 237,) and it is his authority, directly, or subordinately, in the inferior officers, when on duty, to which they owe obedience. Nor is this power of removal confined to the case of the seamen only, but in a proper case the master may remove the subordinate officers also. (Thompson v. Busch, 4 Wash. C. C. R., 338; 3 Kent, 237.)

This authority of the master over the crew and subordinate officers rests not alone upon the necessity of preserving discipline on board the ship, nor exclusively upon the contract between himself and the seamen by virtue of the shipping articles, but it has its origin, partly, in the fact, that the master is himself personally responsible to his owners and to others for his conduct, as master, for any injury or loss to the ship or cargo, by reason of his own negligence or misconduct, or that of the men whom he employs. This responsibility attaches to him by virtue of the supremacy of his office, and it is true of no other officer in the ship. It has its analogy in the responsibility which attaches to the supreme head in all governments, and, as in the case of the latter, finds its compensation in the authority which accompanies it, over those for whose conduct the responsibility exists. (3 Kent, 235; Abbot, 231; Flanders on Shipping, § 65; Stone v. Kelland, 1 Wash. C. C. R., 142.)

If such be the nature and authority of the office of master, and such the relations between himself and crew; and if it be true, as is most evident, that the skill and the authority must be both united in the same person, then it is manifest that the warranty of sea-worthiness is not complied with, when the authority is all in the master, and the skill in a subordinate person. This would be true, were such subordinate person an officer known to the law, such as first mate, the next highest in authority; but the truth of the proposition becomes more palpably manifest when the person in whom the skill resides, occupies so anomalous a position as that held by Oapt. McNeil. His duties were those of a sailing-master, an office familiar in the naval service, but entirely unknown to the mercantile marine.

In case of the death or absence of the master, or the occurrence of any event by which he is rendered incompetent to the discharge of his duties, the right and authority of the officer devolve on the next in command, the first mate, an office known to and recognized by the law. (Copeland v. The New England Marine Ins. Co., 2 Metcalf, 432.) The seaman ships subject to this very contingency, and well knowing and understanding, and assenting to the rule; but the nondescript office of sailing-master, he knows nothing of, and is not bound to recognize, either bj the usages of the service, the maritime law, or his contract with the master. This very vessel was provided with a first and second mate, upon whom, in order, would have devolved the navigation and command of the vessel in the event of the death of Captain Greene. Suppose this contingency to have happened on the voyage, could McNeil have claimed the right to succeed him ? Could he have contested this right with the chief mate ? Allowing that his commission gave him some rights, they certainly gave him no such right as this.

The law of the marine, with which alone the insurer has to do, gives the right of succession to the next officer in rank, and no private arrangement between the owner and McNeil, not known and assented to by these defendants, could have affected their right to claim that the master should be succeeded by a competent officer, clothed by law with' the necessary authority to enforce discipline. McNeil would have occupied in respect to the mate, precisely the position which he had sustained in relation to the master. Obedience would have been due, not to him, but to the mate, and his position would continue to be what it had ..been from the first — an anomalous post of duty, without responsibility or power. If this view be correct, and if, as it seems to be conceded, the mate was a competent seaman, then in what respect as regards sea-worthiness, does the case differ from what it would have been, had the vessel left New York without McNeil on board ? The skill to navigate would in such case have been equally present in the person of the mate, and with the advantage of his possessing some authority, and the right to claim the success sion in case of the master’s decease; and yet, can it be pretended that the vessel would, under such circumstances, have been, deemed sea-worthy within the meaning of the warranty ?

But there is a broader aspect in which I think this doctrine of' sea-worthiness, as respects the master, may well be regarded. When the powers and duties of this office, apart from the exercise of mere nautical skill, are taken into consideration, some of them involving the power of fixing the liability of the insurer himself, it is clear to my mind, that the parties, when they enter into the contract, contemplate in the warranty of sea-worthiness, in its application to the master, not merely a skilful navigator, but a person of sufficient experience in bis calling, and of adequate judgment and prudence, to be equal to those emergencies in -which, by his official acts, he may determine the liabilities of the parties. Take for illustration, the familiar instances of a technical total loss and a jettison. In the first, it is within the power of the master to sell the vessel, a power which he must exercise upon his own judgment of his owner’s election to abandon. It may present a case of extreme difficulty; the master is called to act, not upon certainties, but upon probabilities; and if he acts upon a correct estimate of these probabilities, he would be justified in abandoning, although the vessel be afterwards repaired at less than the estimated expense. A jettison, properly made, fixes the liability of the insurer in general average; the propriety of making it, is to be determined by the master alone, although he is at liberty to consult with his officers. The crew have no authority in the premises; it is a right, the exercise of which, requires great judgment in determining the degree of necessity.

A master may be a competent seaman, so far as skill in navigating the vessel is concerned, and yet totally destitute of that judgment which would make him equal to a crisis like either of those just referred to; and while it may be admitted that the mere absence of a high degree of judgment and discretion in the master, who is nevertheless possessed of general nautical skill, would not, of itself, render a vessel unseaworthy, yet the necessity of these qualities as a means of protection to the insurer, shows that the warranty in question is with him a matter of substance and not of form — and that it embraces a range of qualifications of which nautical skill, while it may be the most indispensable, is nevertheless, not the only one. It is in the general capacity, experience, and qualifications of the master — his ability safely to navigate the vessel, and encounter the imminent risks of his employment, and his capacity to understand, choose, and decide, in those extreme issues, in which the decision of the instant, determines forever the liability of the insurer — that the latter relies for the attainment of the only object which influences him in entering into the contract, the chance of earning the premium. He does not contract (in the absence of evidence to the contrary) to insure a voyage conducted by a landsman as master, though assisted in the navigation, by a skilful person, appointed for that purpose ; and especially may it be said that he cannot, with any semblance of truth, be held to have so contracted, when the assistant in question occupies a post of duty unknown to. commercial usage and law, and wholly without authority over the crew. An incompetent master, with a powerless assistant, are not enough to satisfy the requirements of this condition, and it would he introducing a dangerous principle into the law of insurance to hold the insurer under such circumstances liable.

There is not a particle of evidence to show that the defendants in these cases had the slightest intimation of the arrangement in respect to the employment of Greene and McNeil, when the vessel left the port of New York. They had no reason to expect such an arrangement, and in all probability would have refused to insure had they known it; and to hold the warranty complied with under these circumstances, would not only be a dangerous innovation in the well understood principles of marine insurance, but a violation of good faith in fact, as respects the defendants. Judgment must be for the defendants in both cases.