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    The Administrators of Isaac Perrin v. The Protection Insurance Company.
    In an action on a policy of insurance, it is no defense to show that the loss was occasioned by negligence in the agents of the insured.
    A loss of a steamboat, by explosion of the boiler, is covered by the policy.
    A new trial will not bo granted on the ground of newly discovered evidence, where such evidence is merely cumulative.

      This is a motion for a new trial, from the county of Hamilton.
    The suit was brought on a policy to insure one-half of three-eighths of “the hull, tackle, and apparel of the steamboat Moselle.” The risks described are those of “the seas, drivers, fires, enemies, pirates, rovers, assailing thieves, and all other losses and misfortunes which shall come to the damage of the said steamboat, according to the true intent and meaning of the said policy.”
    The declaration was in the common form, to which the defendants plead the general issue.
    At the trial, the interest of the assured, who was master of the boat, and the rights of the plaintiffs, were admitted. It was shown, that during the time covered by the policy, an explosion occurred by which the master and many others were killed and the boat entirely destroyed.
    The defense consisted in attempting to show that the loss happened from negligence of the master and-hands. A verdict was taken for the amount of the loss, under the direction of the court, and.this motion for a new trial is made for the following causes:
    1. Because the court did not permit the defendants to ask of experts the following questions :
    I. . If an explosion can occur when machinery and boilers are of good material, properly constructed, in good order, and skillfully and properly managed ?
    2. If an explosion arising from no known external cause be not evidence of negligence?
    II. Because the court did not instruct the jury that a loss, by the explosion of the boilers from an internal cause, is not covered by the policy.
    III. From newly-discovered evidence.
    Wrigiit, Coffin & Miner, and H. Starr, for defendant,
    in support of the motion for new trial:
    Upon questions of science or trade, or others of the same kind, persons of skill may speak, not only as to facts, but are allowed, also, to give their opinions in evidence. 1 Phil. Ev. 209.
    *Mr. G-reenleaf, in his late valuable treatise on Evidence, lays down the same principle, thus: “ On questions of science, skill, or trade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence.”

      Thus, the opinions of medical men are constantly admitted, as to the causes of diseases or of death, or the consequences of wounds, and as to the sane or insane state of a person’s mind, as collected from a number of circumstances, and as to other subjects of professional skill. And such opinions are admissible in evidence, though the witness formed them, not on his own personal observations, but on the case itself, as proved by other witnesses on the trial. But when scientific men are called as witnesses, they can not give their opinions as to the general merits of the case, but only their opinions upon the facts proved. Green-leaf’s Ev. 489.
    Folkes v. Chad, 3 Doug. 157; 26 Eng. Com. L. 63, is a leading case upon this subject. The trustees for the preservation of Well’s Harbor, being of opinion that a bank, which had been erected above twenty years, for the purpose of preventing the sea overflowing some meadows, which had descended to tho plaintiff, contributed to the choking and filling up of that harbor, by stopping the backwater, threatened to cut it down; on which, tho plaintiff applied to the court of chancery for an injunction. The court directed an action of trespass to be brought, to try whether the mischief the bank did to the harbor was a justification for the cutting, that thus the merits of the case might be decided by a jury. At the trial, the plaintiff called Mr. Smeaton, an eminent engineer, to show that, in his opinion, the bank was not the cause of the mischief. It was objected that this evidence was matter of opinion, and Gould, J., who tried the cause, rejected it, and the defendants had a verdict.
    On a rule for a new trial, Lord Mansfield said: “ The facts in this case are not disputed. In 1758, the bank was erected, and, soon afterward, the harbor went to decay. The question *is, to what was this decay owing? The defendants say, to the bank. Why? Because it prevents the backwater. That is matter of opinion. It is matter of judgment, what has hurt the harbor.
    “Mr. Smeaton’s opinion was deduced from facts not disputed; the situation of banks, the course of tides and of winds, and the shifting of sands. His opinion, deduced from all these facts, is, that, mathematically speaking, the bank may contribute to the mischief, but not sensibly. Mr. Smeaton understands tho construction of harbors, the causes of their destruction, and how remedied. In matters of science, no other witnesses can be called. An instance frequently occurs, in actions for unskillfully navigating ships. The question, then, depends on the evidence of those who understand such matters; and when such questions come before me, I always send for some brethren of the Trinity House. I can not believe that, when the question is, whether ¡1 defect arises from a natural or artificial cause, the opinions of men of science are not to be received. I have myself received the opinion of Mr. Smeaton, respecting mills, as a matter of science. The cause of the decay of the harbor is also a matter of science; and still more so, whether the removal of the bank can be beneficial. Therefore, we are of opinion that his judgment, formed on facts, was very proper evidence.”
    So a shipbuilder may give his opinion as to the seaworthiness of a ship, even on facts stated by others. Thornton v. Royal Exchange Assurance Co., Peake’s N. P. C. 25; Beckwith v. Sydebotham, 1 Camp. 117.
    Persons accustomed to observe the habits of certain fish, have been permitted to give in evidence their opinions as to the ability of the fish to overcome certain obstructions in the rivers which they were accustomed to ascend. Cottrill v. Myrick, 3 Fairf. 222.
    A practical surveyor may express his opinion, whether the marks on trees, piles of stone, etc., were intended as monuments of boundaries. Davis v. Mason, 4 Pick. 156.
    *It seems clear to us, from an examination of the foregoing and other authorities, that the question was a proper one. The opinion asked, it is said,, must be upon the facts proved in the cause, or such as are not disputed.
    It did not lie in the plaintiffs’ mouths to say that the machinery and boilers were not of good material, well constructed, and in good order, or that a crew was not provided, having competent, skill and care to navigate the boat. There was an implied warranty to this effect. The facts, therefore, embodied in the question, though disputed by us, in this particular instance of the Moselle, could not be questioned by the plaintiffs; they were bound to show them affirmatively. We had a right to assume them. But can a boat, having all these prerequisites, explode, with a gunpowder explosion, without some particular act of negligence ? It is difficult, perhaps impossible, to prove negligence affirmatively. Eew are left to speak of this disaster, and.none have survived it who would have been most likely to know the facts which transpired immediately preceding the explosion. How it came about is matter of opinion. Men of science, and men of practical skill and experience in the structure and management of the steam engine, alone can tell; and, we affirm, such is the nature of the subject, that their opinions are absolutely conclusive — as certain and satisfactory as the opinion of a medical man, as to the cause of the death of a person, in whose stomach, upon a post-mortem examination, he had found a quantity of arsenic.
    On the trial, it was said, the opinion sought was as to tho very question the jury were to try. Was this so? It does not differ, in this respect, from the cases cited. If answered in the negative, it establishes that there was negligence; but, so in the case of the «embarkment, if the opinion had been that it was the cause of the harbor going to decay, it would have been equally decisive of the result in that case.
    The plaintiffs affirm, the boat was completely manned, the boilers, machinery, etc., well made and in good order, and that there was no want of skill and care; and notwithstanding an explosion, the most appalling and disastrous in tho history of %team navigation, takes place without any external cause to produce it. Tho -defendants call upon men of skill and science to say, if, under such circumstances, the facts being so, an explosion could have taken place. And we know, from what occurred on the trial in tho court below, that each witness would have answered, unhesitatingly in the negative.
    The Recond proposition is, that if the explosion of boilers pro•ceed from an internal cause, it is, of itself, prima facie evidence of a want of proper care and attention on the part of those having the management of the boat.

    If a stage-coach bo upset, and a passenger injured, proof of these facts alone establis hes, prima facie that there was carelessness, or negligence, or want of skill, on the part of the driver, and throws upon the defendants the burden of proving that the accident was not occasioned by the driver’s fault. Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstall, 13 Pet. 190; McKinney v. Neil, McLean’s C. C. 540.
    We do not find the reason of this rule given in any of the cases, but it is evident it is upon the ground that the coach is staunch And strong — roadworthy; that the horses are gentle, manageable, and properly harnessed; and that the driver has the requisite skill and prudence to guide them along the road with safety to the passengers. Such is the understanding of those who trust themselves to stage conveyance. There is an implied warranty to this effect; and if any accident occurs, it is out of the usual course of things, and for the proprietor of the coach to explain and reconcile with his obligations to the passengers. So, in our opinion, is the rule, and for a better reason, in case of loss or injury from explosion of boilers. In the latter case, there is also an implied warranty, that the boat is, in all respects, seaworthy.
    A steam engine, properly constructed, is entirely within man’s control. Such is the common sentiment. Did not men think so, they would as soon embark on a floating volcano as on a steamboat. But this idea of security does not rest on common opinion, merely. It is a matter of science. The laws of steam are as well understood as the laws which regulate *anv other power. Such is the testimony, both of scientific men and experienced practical engineers. It has been satisfactorily ascertained, by scientific experiments, that, when the temperature in the boilers is 342 degrees, the expansive force is 120 pounds to the square inch, which is regarded as the limit of safety with common western boilers; and every time about forty or fifty degrees of heat are added, the expansive force is doubled. 472 degrees of heat produce 525 pounds of pressure, which is regarded the point of unavoidable bursting of common western boilers.
    Boilers are now gauged at about ninety-six pounds, by the best and most skillful manufacturers; that is, the safety valve is so adjusted, that, with a pressure of ninety-six pounds to the square inch,it will rise and let the steam escape; and this result is as unerring as the law of gravitation, if the valve is left free to act as adjusted by the maker. This is far within the limit of safety; and yet experience proves that such degree of heat and pressure will gender as much steam as can be worked off in common cylinders, and that all beyond is useless. The rule for ascertaining the strength of the boilers, is to multiply twice the thickness of the boiler iron, in inches, by 60,000, and divide the product by the diameter of the boiler, in inches; the quotient will be the utmost which a perfect boiler, made of the best iron, will bear to the square inch. But it should never he used with one-fourth of this. The gauge-cocks will always indicate, with sufficient certainty, to the practiced engineer, the height of the water in the boilers. Thus, by means of the safety valve and the gauge-cock, the engineer is-enabled, at all times, to know where the limit of safety is, and when it is departed from. Explosions are, invariably, produced, either by a pressure greater than the strength of the boiler iron, undiminished by heat, can bear, or from permitting the water to get too low, the flues bare, overheated, and so weakened that they are unable to resist more than the ordinary pressure. But an explosion, in either way, presupposes negligence. It may be difficult to determine in which of these *modes an explosion hasoceurrod; and, as to this, men of skill and science may differ, as they did on the trial of this cause. Therefore, we repeat, that the presumption of negligence is much stronger in case of an explosion, than in case of the upsetting of a stage.
    Roads are not always smooth and level; ruts may be worn deep, and the horses may become restive, or may take fright; they have a will independent of the driver; but the steam engine has no will, and can not be frightened: it operates by fixed and well-known laws, from which it never deviates. Of all the great moving powers, it is the most completely manageable. Gravitation can not. be controlled; the wind may swell to a hurricane, which can not be resisted; animal strength may rebel against its commander, but steam, however vast its power, may always be kept under perfect obedience. A child, when instructed how, could manage thei mightiest engine ever made. Unless, therefore, an explosion bet accounted for from some external and unavoidable cause, the presumption of negligence is irresistible. .
    The third reason assigned for a new trial is, because the court refused to charge the jury, as asked by the defendant’s counsel, that the explosion of the boilers, from an internal cause, was not an accident within the terms of the policy, or covered by it.

    The insurance was taken in terms, upon the “ hull, tackle, and. apparel.”
    The risks insured against are, “ of the seas, rivers, fires, enemies, pirates, rovers, assailing thieves, and all other perils, losses, and misfortunes which shall come to the damage of the said steamboat, according to the true intent and meaning of this policy, as herein expressed

    The words are the same which have been used for ages, long-before the steam engine was known. They had received an established construction before this new peril became possible, and, therefore, this would not be included without special mention. The insurance is not taken, in terms, upon the boat or the engine; explosion is not one of the enumerated perils. *The only enumerated perils which could, under any circumstances, include this, would be of “ rivers or fires.” The peril of fire is well understood to mean burning up, not exploding; for fire is no more the cause of explosion than water is. Both must concur with other causes; and with as little propriety can explosion be called a peril of the river. It is a peril of steam, wherever used, on land or water. Snagging, sinking, collision, and the like are perils of the river, and were so before steam was known. But as well might fire be called a peril of the river, because it occurs on the river, as to say that explosion is, for the like reason.
    It may be said, however, that explosion comes within the phrase, '“and all other perils,” etc. The general rule of construction is, that whenever an enumeration is attempted, all particulars not enumerated are excluded. A specific enumeration of rights or duties can not be enlarged by subsequent general terms in the same instrument. But the policy itself settles the question, for it confines these other perils to such as may happen “within the true intent and meaning of this policy, as herein expressed.” In other words, all losses and misfortunes, which may result from the enumerated perils, are covered by the policy, whether they be direct or consequential, but no other. And this is the opinion of Kent, 3 Com. 299. We conclude, therefore, that the peril of explosion, being a new peril, peculiar to steam, is not within the policy, unless specially mentioned. And, in this conclusion, we .are strengthened by the fact, that no case can be found in the books where it has been held that a loss by explosion was covered by the policy.
    The only case we are now aware of, where this question has been determined, was that of Rogers and Shrewsbury v. These Defendants, which was arbitrated and decided in 1829, by Charles Hammond and Henry Starr, Esqs. In that case, the insurance was upon the “boat, her hull, engine, furniture, tackle, and apparel.” The risks specified were the same as in the present case. The arbitrators determined, upon full, ^argument, that a loss by explosion, from an internal cause, was not covered by the policy.

      The fourth and last ground for a new trial is, “on account of material evidence discovered since the trial, as set forth in the affidavits of C. S. Pomeroy and E. Robbins.”

    Since the trial, the deposition of the witness referred to in the affidavits of Mr. Pomeroy and Mr. Robbins has been taken and filed with the papers, and will be before the court. We therefore submit this last reason without argument.
    We are apprised that, in this case, an effort will be made to induce the court to reconsider and disaffirm the rule heretofore established, and so often affirmed, that in case of loss resulting from the negligence of the master and mariners, the underwriters will not be held liable.
    This will be urged upon the authority of the decision of the Supreme Court of the United States, in the case of Waters v. Merchants’ Louisville Insurance Company, 11 Pet. 213, reported since the decision of this court in Fulton and Foster v. Lancaster Ohio Insurance Company, 7 Ohio, 5.
    We shall not review the authorities bearing upon this vexed question. Nothing, perhaps, except what may be peculiar to this case, can be added to the argument of counsel, and the lucid and very able opinion of this court above referred to.
    In our judgment, the correctness of that decision, upon principle, is not shaken by the reasoning of Mr. Justice Story, in the case in 11 Pet. The weight of authority, too, upon the precise question, is on the side of the decision of this court. For, let it be borne in mind, that the question is, whether in a marine policy, which does not contain a clause against barratry, negligence will excuse the insurers; and there is not a single decision upon such a policy, except the one in 11 Pet., and one by the same judge on the circuit, reported in September No., 1842, Law Reporter, 200, where it has been held that negligence did not excuse. It is desirable that the decisions of the Supreme Court of the United States, and those of the state courts, should harmonize upon questions of this sort. But it is quite as desirable, that rules of law should be established *which will stand the severest scrutiny of enlightened reason, and the test of experience, and we are constrained to say, highly as we appreciate the character of the judge, who delivered the opinion of the court in the case in 11 Pet., for legal learning and sound judgment, that we do not think the rule there laid down will stand either of these tests. Therefore, we are disposed to request the Supreme Court of the United States to reconsider their opinion, rather than ask this court to recede from a rule, as we conceive, correct in principle, and most salutary in its operation, by mere force of a superior tribunal.
    The doctrine that a loss, the proximate cause of which was a peril insured against, though remotely occasioned by the negligence of the master and mariners, is covered by the policy, is of recent origin in England, and expressly on the ground that barratry was insured against. Liability for a loss by the barratry of the master and mariners was, so to speak, father to liability for loss remotely occasioned by the negligence of the master and mariners.
    Now the gist of barratry is the willful misconduct of the master and mariners. The owner of the vessel has exorcised his best judgment in the selection of a master and crew. He has complied with his implied warranty in this respect, but he can not penetrate the secrets of the heart; he has no spear of Ithuriel with which to try them; he can not measure their strength to resist temptation; their fidelity may be seduced. After he has done all that he can do, there is a risk that his servants may prove dishonest. This risk he insures against. So the master and mariners, selected in like manner by the owner of the vessel, may sometimes prove negligent or unskillful, and from such negligence or want of skill, loss may result. True, the owner impliedly warrants that a careful and skillful master and mariners shall be placed in charge of his vessel; but, after all, they may not prove so; there is risk in this respect also; and if, as in the case of barratry, the policy expressed that it should be borne by the insurer, there would be no cause to complain. But to impose this risk when not ^expressed, upon the insurer, seems to us strange and'unjust, and the reason given for it in the English decisions, because barratry is expressly insured against, strikes us as somewhat absurd. But if negligence does not excuse the underwriter, whose negligence? As in case of barratry it is the acts of the master and mariners that are insured against, so in case of negligence, we affirm from analogy, as well as upon principle and authority, it is the negligence of the master and mariners, not the negligence of the insured.

    Judge Story, in the case reported in September No. for 1842 of Law Reporter, 203, says, “The owner can, in most cases, be in no better condition to guard himself against a loss by the negligence of his agents, than he is to guard himself against a loss by accident or irresistible force. Ho does not warrant the fidelity of his agents, but merely their capacity and ability.” The import of this language can not be mistaken. A man should no more be permitted to insure against the effects of his own willful misconduct, than against that which will be imputed to mero negligence.
    A contrary doctrine strikes away, at once, all distinction between the skillful and unskillful, the careful and the rash; breaks down all incentives to good conduct, and leads to endless frauds.
    An individual commanding his own boat (and it often happens, on our rivers, that the same individual is commander and owner), gets her insured at a high valuation, and upon long time, and just before the policy expires, when the boat is worn out and worthless, commits some act of negligenco, purposely, perhaps, by which she is lost, and thus pockets the insurance.
    Isaac Perrin, the plaintiff’s intestate, was the owner of three-eighths of the Moselle. The policy upon which this suit is brought, was upon a portion of his interest. He was on board, and in command at the time of the disaster, and, as the defendants claim, it was through his gross negligence or want of skill and prudence, that the loss occured. He it was that told his friends he had raced with the Ben Franklin coming up, and had been beaten, because his boilers were filled with ^Mississippi mud. That his boilers had been cleaned, and he intended to beat the Franklin or blow his boat out of the water. His boat was his continual boast. In the language of a number of the witnesses, “ he seemed infatuated in reference to it.” He had bad a convivial meeting of his friends on board ¡ immediately preceding his departure from the wharf, on the voyage so speedily and fatally terminated. Ho had told those friends, and others, through the city, to look out during the afternoon, and they would see a boat go by the city as boat had never gone. These and many other acts and declarations, evincing the extreme of rashness and folly, immediately preceded the explosion.
    If there be any case on a marine policy where it has been held that the insurers were liable, though the loss was occasioned by the negligence of the insured, we have failed to find it. We affirm there is no such decision.
    It is said that loss is to be attributed to the proximate cause, and not to the remote cause. In all the cases the negligence was the remote cause, but the proximate cause was a peril insured against. Now we insist, in the present case, that the negligence or rashness was not remotely the cause of the loss, but actually concurred as an .efficient agent, with other agents, eo instanti, when the explosion took place ; and that, therefore, this case is not within the rule.
    We also submit, whether, if the rule of the Supreme Court of the United States is to prevail, the insurers are to be held liablo for every degree of negligence ; for instance, gross negligence.
    If this court should be induced to overrule their former decisions, and adopt the rule of the Supreme Court of the United States, •still we insist for reasons which, we trust, have been made sufficiently apparent, that the rule is not applicable to this case. But we sincerely hope the rule of the Supreme Court will not prevail here. Upon the broad ground of public policy it ought not to prevail. It is not adapted to the spirit and character of our people, especially that portion of them engaged in the navigation of our western and southern rivers. *There is a degree of enterprise and fearlessness about these people that can not be kept in proper chock by the fear of personal danger, or out of regard for the safety and lives of others. Leave the pecuniary risks incident to the carelessness, or recklessness, or want of skill of these men, to be borne by the owners of vessels, and they will exercise .greater care and understanding in the selection of agents, and the standard of attainment will be elevated. Lay these risks upon the insurers, and the spirit, if not the language, will be: go ahead; the insurance company takes the responsibility l We fear the effect of such a rule.
    Charles Fox, for plaintiff, argued against the motion :
    The plaintiffs insist an explosion may take place without fault on the part of the officers. But they also insist that mere negligence, on the part of the plaintiffs, or their officers and men, does not discharge the insurer. If the direct occasion of the loss is one of the risks insured against, as fire, a peril of the river, etc., it matters not what may be the remote cause, whether it be negligence, the want of foresight, or anything else not amounting to absolute fraud, the insurer is liable.
    If, therefore, mere negligence is not sufficient to discharge the underwriter, it is clearly immaterial to inquire as to what amounts to prima facie, and what to conclusive evidence of the fact of negligence. I claim that in no case can the insurer discharge himself from responsibility by showing that negligence was the remote cause of the loss; and, if this is a legal proposition, then there is no doubt of the correctness of the charge of the court.
    By a series of decisions, made in the Supreme .Court of the United States since this question was first agitated in that court, it is now well established that, “ in marine policies, whether containing the risk of barratry or not, a loss, whoso proximate cause was a peril insured against, is within the protection of the policy; notwithstanding it might have been occasioned, *remotely, by the negligence of the master and mariners.” 11 Pet. 224.
    The eases which had, before this last decision, been considered as establishing this doctrine in the Supreme Court, will be found in 3 Pet. 222, and 10 Pet. 507.
    The case in 11 Pet. 224, is directly in point. It was the loss of a steamboat by explosion, caused by the carelessness of the officers and crew, in setting fire to the gunpowder aboard the vessel. The court decided negligence to be no excuse to the underwriter-judge Story, in delivering the opinion of the court, has examined all the cases on the subject, and has made a masterly argument, which leaves nothing to be said on the subject. The doctrine has been again asserted by the judge, in Hall v. Washington Insurance Company, September No. Law Reporter, 1842, p. 201; so that, 30 far as the decisions of the Supremo Court of the United States are concerned, this question is finally settled.
    I am aware this court has held a different doctrine, in several cases, after lull argument in bank. But, I think, since the decision in 11 Pet., I am not asking too much of this court, when I urge them to reconsider their own decisions on this subject. In questions of commercial and insurance law, it is very desirable that the decisions of our courts should be uniform; and the decisions of the Supreme Court of the United States, when made ought, in such questions, to be held binding on the state courts. It is not likely that, on such questions, with the assistance of the ablest lawyers in the Union, the opinion of that court would be far from right. But the advantage of a uniform rule, on these questions, is as important as that the decision itself should be right.
    I take it' for granted, from expressions made use of by this court, in several cases, that it is desirous of following the decisions of the Supreme Court of the Union in questions of this kind. In reviewing the decisions of our own court, we find that, in the case of Lodwick v. Ohio Insurance Company, 5 Ohio, 436, on the circuit, the judges held that the negligence *would not discharge the underwriter; but, in court in bank, the court decided otherwise.
    In 7 Ohio, 25, it was supposed by Judge Grimke, that the Supreme Court, in 10 Pet. 508, did not intend to decide this question; that the remarks made on the subject, in that case, were extrajudicial; and yet we find, in 11 Pet., the court does consider' that the very question had been decided in 10 Pet., and that a more full examination had confirmed them in the opinion then-expressed.
    It appears to me that the judges, who have held that the negligence of the officers and men, employed on board an insured vessel, releases or discharges the underwriter, have not sufficiently distinguished between the implied warranties which attach to, and form parts of the policy and cases of mere neglect.
    It is well settled that there are implied warranties in every' case of insurance; and that if these, or any of them, are not complied with, the policy is void; such, for instance, that the vessel is seaworthy. 1 Phil, on Ins. 249, 309.
    This warranty of seaworthiness requires the vessel to bostaunch, and of sound materials; well provided with men and provisions; captain and officers of the usual skill, ánd general good character. Where it is customary to take a pilot on board,, the vessel is not seaworthy without one, if to be obtained. 1 Phil. 308-316.
    I admit that, if any of these implied warranties are not complied with, the insurers are not liable, because the contract is not-complete, and the risk never attaches. But it is equally clear, that if the vessel is seaworthy, at the commencement of the voyage, this implied warranty is complied with. But I will not fatigue the court by arguing this question, as I am aware that the-attention of the court has been heretofore often called to it. I rely upon the decisions of the Supreme Court of the United States, as having settled the law in the cases referred to; and,, secondly, upon the necessity of having a uniform rule on this subject, as sufficient inducements for this court to review its former decisions, and conform to the decisions *of the federal courts, even if they continue to doubt the correctness of the latter decisions.
    But I am not willing to admit that this loss was occasioned by negligence; on the contrary, I insist that no negligence was shown at the trial.
    It will be remembered that, in all cases, when negligence is set' up as a discharge of the underwriter, the fact of negligence must be clearly proved. It is not to be left doubtful, but must be as fully established as the plaintiff’s cause of action. 2 Phil. Ins. 759, 760.
    So, if the defendants insist that the vessel became unseaworthy at a certain period, it is a fact to be proved by the insurer, because the law presumes a continued seaworthiness. So, if deviation is alleged, it must be proved. Ib.; 4 Mason, 440.
    If we refer to the evidence, I insist there is no evidence of negligence or carelessness. It is not pretended there was any other evidence or negligence than a desire, on the part of the captain, to make a quick trip, and what might be imagined or inferred from the fact of explosion; whether this was occasioned by keeping the steam too high, by the want of water, collapsing of the flue, defects in the machinery undiscovered, was a matter of great doubt and uncertainty among the witnesses; and the most learned men, those most scientific, appeared to differ most in their views of the cause of the disaster.
    The fact is, the powers of steam are not yet fully developed. The accidents, continually occurring, seem to baffle the calculations of the most skillful; and while this is the case, surely the steamboat owner is not to be charged with negligence, merely because no one can account for the accident..
    All that is required, on the part of the owners, is that they shall employ men having the skill usually expected of men in that particular business in which they are employed. 4 Mason, 440.
    It is also claimed that a loss, by the explosion of the boilers from an internal cause, is not a loss within the terms of the policy.
    *1 should as soon think of saying a loss occasioned by the wind was not a peril of the sea, when applied to a sea vessel propelled by wind. But let us look at the risks insured against. These are the risks of the river, fire, pirates, etc., and all other perils, losses, and misfortunes, which shall come to the damage of the steamboat, according to the true intent and meaning of the policy (except losses in money, notes, and evidences of debt).
    In construing this policy it must be kept in mind that the subject insured is a steamboat, and that the risk of navigating a steamboat on the Ohio river is intended to be insured against. One of the risks of the river is the running against snags, or against rocks, or running aground. Another is, of being injured by collision. Neither of these particular risks is especially named in the policy, but it is known they are all risks that every steamboat has to run in the ordinary course of navigation, and therefore are called perils of the river*. So of a vessel propelled by wind.
    We are not to expect that every engineer has a perfect philosophical knowledge of all properties and powers of steam. We are bound to have such engineers and officers as are usually employed in the particular trades, not the very best engineers that can be found in the world. “ If it were the usage to employ masters not skilled in navigation, a vessel would be seaworthj" with only such a one.” 1 Phil. Ins. 312, and causes cited.
    Now, in this case it was proved our engineers, officers, and men were all good, and no particular act of negligence was proved, and, of course, the defense of negligence was not made out.
    If a sailing vessel has' too much sail set, a gust of wind, may throw her on her beam ends, and occasion the loss of the vessel. This loss is not specified in the policy, but it is deemed a peril of the sea, and covered by the policy.
    A vessel propelled by steam has to make use of boilers and fire in order to generate the steam. One of the risks attending the generating of steam in boilers is the bursting of the *boilers, caused by a collapsing of the flue, or, if you please, by so increasing the heat as to create an expansive force or pressure of the steam greater than the boilers will bear. Is not this bursting one of the perils attending the navigation of the river ?
    “ The general rule is, that the insurer charges himself with all the maritime perils that the thing insured can meet with on the-voyage.”
    “ The policy sweeps, within its inclosure, every peril incident to the voyage, however strange or unexpected, unless there be a special exception.”
    The perils enumerated in the common policy are sufficiently comprehensive to embrace every species of risk to which ships -and goods are exposed from the perils of the sea, and all other causes incident to maritime adventures. S Kent’s Com. 291.
    “Under the perils of the sea, which constitute a part of the .risks in almost every marine policy, are comprehended those of the winds, waves, lightning, rocks, shoals, running foul of other vessels, and, in general, all causes of loss and damage to the property insured, arising from the elements, and inevitable accidents, other than those of captures.” 2 Phil. Ins. 635.
    Under the term, perils of the river, therefore, I insist, a loss by the explosion of the boilers must be included. The boat is expected to be propelled by steam, and one of the risks of using steam is explosion. In the language of Lord Mansfield,. “ the means must be taken to be insured, as well as the end.” 1 Bur. .348.
    Again, the clause by which the owner is insured against — “all other losses and misfortunes which should come to the damage of said steamboat” — covers the loss by explosion.
    Now, it is admitted that the whole instrument must be taken together in giving it an interpretation. This clause means something, and, it is said, “may have the effect of extending reasonable indemnity to many eases not distinctly covered by the special words; they are entitled to be considered.as material and operative words, and to have their due effect assigned *to them in the construction of this instrument, and which will be done by allowing them to comprehend and cover other cases of marine damage, of the like kind, with those specially enumerated, and occasioned by similar causes.” 2 Phil. Ins. 688; 5 M. & S. 461.
    This clause, then, may be said to cover other losses not enumerated in the policy, provided they arc occasioned by the perils incident to the business. Wo must take a common-sense view of the question in this, as in all other cases, and not be seeking after technical excuses. As the ingenuity of man is continually contriving new means of effecting the same object, whether it is in propelling boats, or performing any other useful act, we must consider these new means of obtaining the same object, as embraced in every contract made, in which their use is fairly expected.
    And such has been the decisions and practice of the courts. Thus, we find, in Ellery v. New England Insurance Company, 8 Pick. 14, where a ship had been hauled out on a marine railway to be repaired, and, while being hauled, fell over on her side. It was held, that although his mode of repairing was of modern origin — indeed, had been introduced after the policy had been signed-yet, as the railway had been tested again and again, was in common use when the ship was placed upon it, the court decided that the loss came within the description of “ all other losses,” and that the parties might reasonably be supposed to contemplate, that the most approved means should be employed in repairing, as well as in the management of the ship ; and that, as the ship was within the protection of the policy when repairing, “ the means must be taken to be insured as well as the end.”
    But, in the present case, I suppose, as, in the ease in 11 Pet. 224, the explosion was caused by fire, the latter was the proximate cause of the loss, and the policy, therefore, covers this loss by the express terms of the policy.
    Since the foregoing was written, I have seen the argument of the defendants’ counsel, and have nothing to add to what I have already said on the subject before discussed. But, on *the argument of the defendants’ counsel, as to the refusal of the court to permit the question, as to the opinion of the witness, to be propounded, I have a few remarks to make.
    The defendants’ counsel, in attempting to sustain the right to ask the question propounded, place it on the ground that it is a question of science or skill, and that, therefore, persons of science and skill may answer by giving an opinion. I do not so consider this matter.- In the first place, when the opinion of a man is asked, instead of facts, that opinion is received upon the supposition that there is a difficulty in making a full explanation of the particular facts to the jury, because they are so connected with the particular science as not to be easily understood, except by persons learned in the science, and hence opinion is substituted for facts. “ The rule is confined to cases in which, from the very nature of the subject, facts disconnected from such opinions can not be so presented to a jury as to enable them to pass upon, the question with the requisite knowledge and judgment.” 7 Wend. 78.
    But it must be recollected, also, that persons of science, etc., who give their opinion, are bound to disclose the facts upon which they are based; and even a physician, although upon facts testified to by others, may give an opinion that the wound, etc., was capable of producing death, yet he can not be asked for hie opinion of the whole case, or whether the accused was the cause of the crime, etc.
    So the opinions of witnesses as to the improbability of a blow-having been given from which death ensued, judging from the relative positions of the parties, as stated by witnesses, are not admissible. 19 Wend. 569.
    If we look at the question propounded, we shall see that the whole object of it is to ascertain the opinion of the witness whether there was negligence in the management of the boat. This is the naked question, when stripped of the artful mauner of propounding it. Let us put the question directly to the witness, and it will be in these words : Do you think this loss would have taken place if the managers of the boat had not been guilty of negligence? Suppose the answer to be no; *then the question would be asked, why do you come to that conclusion? And the answer would be, in the language of the interrogatory, be cause if the machinery and 'boilers be of good material, properly constructed, and in good order, and managed with skill and care, an explosion can not take place. So that every one must perceive that it is really asking the opinion of a witness as to the whole case. There is not a case to be found giving countenance to such an interrogatory. Its object is to induce the jury to adopt the conclusions of witnesses, instead of their own, and there was not a man on the jury who could have answered the question as well as a scientific man. There is no case where an insurance office might not avoid paying a loss, if negligence was to be proven by such sort of testimony. There is no loss happens, probably, without some fault, negligence, or risk run. A boat, by laying by all night, might avoid running against a snag, which could be seen in the day-time, although not at night. A boat is run aground, and yet, if the pilot had taken the precise place, where the water was deepest, he would not have grounded, and it was carelessness in him not to have taken that particular spot. A steward or servant has left a candle burning, and it has by some means set the boat on fire. The office says this was a careless act, and wo •are not bound, because if the boat was sound, managed with skill and care, the fire could not have taken place. So an engineer accidentally falls asleep, and by some means the supply-pump gets out of order, and no water is forced into the boilers, in consequence of which the steam gets highly heated and the boilers burst. The office say there would have been no lo3S if the engineer had not fallen asleep, and it was a careless act in him to do so. Now, it is admitted in the defendant’s argument that the insured is only bound to select ordinarily careful men to control his boat; but, according to this mode of proving negligence, he is made responsible for the very slightest degree of carelessness. There is no view of the case in which such a question can be tolerated.
    *As to the newly-discovered evidence, I have not seen any. The affidavits made at the trial, by Mr. Robbins and Mr. Pomeroy, only showed that, by proper diligence the defendants could have accumulated more testimony; but that is no ground for a new trial. I have not taken the trouble to examine the depositions, because I suppose the defendants had no authority to take such testimony, unless by consent; and also because I suppose it is merely cumulative testimony.
    On the whole case, I think it was evident to the court that the plaintiff ought to recover. There was no act of negligence shown; that the captain was proud of his boat; that he made foolish brags of what he could do with her, and really believed he had the best boat, and the fastest boat, on the river, I am willing to admit; but that he, or his engineers, were guilty of negligence, I deny. The defense of negligence, then, ‘has not been proved. To say the most of the defense, it has left it doubtful whether there was negligence or not; but that js not sufficient, and therefore the plaintiff ought to have judgment.
   Lane, C. J.

The newly-discovered evidence is cumulative only. At the trial it was shown that preparations were made, before starting, to overtake another boat; that fires were kept burning with great fierceness ; and that the boilers had become very hot;. that the escape of steam was attended with a peculiar shrill noise, denoting great pressure, and so loud as to awaken notice and. alarm. The new evidence is the testimony of a witness who,, going on board, was terrified by the violence of the fires, the intensity of the heat, and the glimmer from the ascent of heated air, “ which seemed to make the boilers creep and move in their beds,” and goes little further than to furnish additional evidence of facts-already before the jury.

That a loss arising from an explosion of the boiler is covered by the policy, seems plain to us, when we consider the subject insured, and the nature of the risks to which it is of necessity exposed. The insurance was on a steamboat. The policy is in the form which has long been in use for marine *risks, and the words which describe the perils are largo enough to embrace all such as arise in the ordinary use of the thing insured. A policy on ships covers losses arising from accidents to the power which moves them, and it must bo presumed that the parties contemplated the same protection to a steamboat, when the loss occurs to her motive agencies.

The other causes for which the new trial is asked depend upon the right of the defendant to use the negligence of those managing the boat as a defense against this liability.

This point first came before this court in 1832. Lodwick v. Kennedy, 5 Ohio, 433. The business of insurance at that time was new in the western waters, and had rarely been the subject of investigation in our tribunals. The court, of which I was then a member, found the rule exonerating insurers from losses arising from the negligence of master and mariners, established in New York. Goix v. Law, 1 Johns. 346; Vos and Graves v. The United States Insurance Co., 2 Johns. 187; Grim v. Phœnix Insurance Co., 13 Johns. 457; and countenanced by such English authorities as were within our roach, and in entire correspondence with that gcnei’al principle, which makes the act of the servant the act of .the master.

In these earlier cases no distinction seems to have been taken Between losses which arise from the want of capacity and skill, and those which are the results of mere carelessness. The former class .are never covered by the policy. But there has been, through the recent jurisprudence, especially through a series of cases decided since that, in 5 Ohio, a modification of the rule, and a disposition to extend the responsibility of the insurer to the latter class of risks. The English cases may be found in 2 Barn. & Ald. 73; 5 Ib. 171; 5 Barn. & Cres. 219. The same charge has prevailed in the United States. It is recognized with favor in Patapsco Insurance Co. v. John Coulter, 3 Pet. 222; Columbia Insurance Co. v. Lawrence, 10 Ib. 517, and in some circuit court decisions; and is finally accepted in 11 Pet. 205, by the Supreme Court, as a well-,established principle of the law of insurance.

*While this doctrine was assuming this form, and before it became an admitted principle of our commercial jurisprudence, it was again before this court, in Fulton & Foster v. Lancaster Insurance Company. I entirely concurred with my brethren in the opinion that no propriety was, at that time, shown for changing our position, as the new rule had not been then sanctioned by the direct authority of any ultimate American court. This uncertainty is distinctly dwelt upon by the judge who reported that case. The decision since made, in 11 Peters, 205, has supplied a precedent, of the most weighty character, settling the law, in the federal courts, in a manner likely to be followed in the courts of these states, where the law merchant is best understood.

The present case distinctly lays before us the propriety of noio adhering to our former decision. This is not a question of local law, springing from our own fountains of jurisprudence only, but a general commercial principle, resting on broader foundations, which ought to be uniform among all civilized nations. When the law of insurance has, in its fuller development, received an important modification, in the English and federal courts, and which, probably, will be the rule of the state courts, as fast as they act upon the question, it may be emphatically asked, whether the courts of Ohio should not conform to this change? It would be not a little inconvenient, as well as odd, if our citizens should receive one interpretation of the universal law merchant in our courts, while the stranger receives one different, by appealing to a different tribunal, which holds its seat by our side.

If the proposed change were wrong in itself, it ought not to be adopted; but it seems to commend itself to our acceptance, by its intrinsic propriety. The assured is bound to provide competent capacity and skill; it is a part of his implied warranty, and a duty which caution will enable him to perform; but the risks which arise from the carelessnesss of his servants, which are among the prominent perils he encounters, are those from which no prudence will defend him,-and from which he may well ask protection from the insurer. If, too, *the inquiry be extended beyond the proximate cause of loss, it will assume a latitude inconsistent with the distinct and intelligible rule, by which the rights of the parties should be defined. Wore the point now first offered to our courts, after these late discussions, it is hardly to be doubted that their modification would be received. And, since it has been accepted in this form in these courts, to whose decisions we look for evidence of commercial law, and since we believe it has, in fact, become a well-settled doctrino of the law merchant, we feel it a duty to recede from the position heretofore taken in these adjudged cases. The adoption of such a principle renders the inquiry sought by defendants irrelevant, and leads us to overrule the motion.

Motion overruled. Judgment for plaintiff on the verdict.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    George Carlisle v. James Wishart.
    Where a negotiable note has, before it fell due, been transferred in consideration of a pre-existing debt, the maker can not, as against the person receiving it, without notice, take advantage of any equities between himself and the payee.
    A pre-existing debt is a good consideration for the transfer of a negotiable note, and a bona fide indorsee, without notice, takes the note discharged of prior equities.
    This is a motion for a new trial, from the county of Belmont.
    The action was assumpsit, against the maker of the promissory note, for $666.66§, dated August 23, 1838, at six months, payable at the Franklin Bank of Cincinnati, to Joseph S. Benham, or order, and was indorsed, and transferred to the plaintiff, by Ben-ham, before maturity, in payment of a precedent debt. The plaintiff received the note in good faith, and without notice of the consideration, or of any defense as against Benham.
    *On the trial the defendant gave evidence of the consideration of the note, and that the same had failed, and other matters, tending to prove that, as against the defendant, Benham ought not to recover; to which evidence the plaintiff objected, but the objection was overruled, and the court charged the jury that, inasmuch as the note had been transferred in payment of a, pre-existing debt, the defendant could make any defense that hej might háve made in case Benham, the payee of the note, had sued the same.
    The jury found for the defendant, and the plaintiff then moved the court for a new trial.

      Daniel Peck, for plaintiff:
    The only question on this motion is, whether a pre-existing debt is such a consideration as will protect the holder of a negotiable note, transferred before due without.notice of any defense between the original or antecedent parties to the paper.
    I consider the question arising in this case of great importance, and well deserving the consideration of this court.
    The books and cases all agree that paper of this description, taken bona fide and for a valuable consideration, shall, in the hands of an innocent holder, be protected. But there has latterly arisen, in some courts, a difficulty as to the true meaning of the term valuable consideration, some holding it to be anything which would amount to a good consideration for ordinary purposes, while others contend that it moans a present consideration that is given, either in money or goods, at the time of the transfer, and that a pre-existing debt is not such a consideration.
    This court, in the case of Riley & Van Amringe v. Johnson et al., 8 Ohio, 526, held that a consideration of that character was not sufficient for such a purpose.
    That opinion, and the cases for and against it, I propose to review.
    The opinion in the case of Riley & Van Amringe v. Johnson et al., professedly rests, for authority, on the case of *Coddington et al. v. Bay, 20 Johns. 637, and other cases, having that as their foundation ; and, considering that it was to settle a point of such importance for the first time in this great state, it seems to me that it did not receive a very thorough investigation; and, for aught that I can see, the case may have been mainly, if not altogether, decided against the plaintiff on the ground of fraud, or notice of the defense as between the original parties to the note. It may have been decided correctly without touching this point.
    It seems to me that the case of Coddington et al. v. Bay has been strangely misunderstood by the Supreme Court of New York. In the original case, when decided by Chancellor Kent, he says : “ That the defendants (the Coddingtons) are not holders of those notes and securities for a valuable consideration. The notes were not negotiated to them in the usual course of business or trade, nor in payment of any antecedent or existing debt, nor for cash or property advanced, debt created, or responsibility incurred on the strength of the notes.” 5 Johns. Ch. 54.

      This case was, by the Coddingtons, appealed to the court for the correction of errors, and it was upon such a case that some of the members of that court undertook to say that a pre-existing debt was not a valuable consideration for the purpose of protecting a bona fide holder without notice, a point not necessary to the decision of the case, nor, in fact, in it at all. The opinions then delivered on that point are more dicta, though, for some time afterterward, the Supreme Court of that state considered those opinions as the settled law of that state, and held accordingly.
    The next case which I will notice is Rosa v. Brotherson, 10 Wend. 85. The note was transferred by the payee to the plaintiff, before maturity, in payment of a precedent debt. As between the original parties the note was of no validity. The Supreme Court decided, on the authority of Coddington et al. v. Bay, that to protect such paper there must be a present consideration paid, and one who takes such a note for a precedent *debt, takes it subject to all the equities between the original parties.
    In the case of Ontario Bank v. Worthington, 12 Wend. 600, the same doctrine is held, the same reasoning adopted, upon the same authority alone.
    Afterward, the same court, in Smith v. Van Loan, 16 Wend. 659, take occasion to explain the case of Rosa v. Brotherson, and, by a reference to the original papers, it was found to be of that character that the plaintiff could not have recovered without any such rule.
    The case of Coddington et al. v. Bay has been much weakened, if not entirely overruled, by some late cases in the Supremo Court of New York. The case of Bank of Salina v. Babcock, 21 Wend. 499, was a note indorsed and transferred in payment of an old debt, the securities for which were canceled. The court held that the cancellation was a sufficient consideration.
    So, in Bank of Sandusky v. Scoville, 24 Wend. 115, the court held that the discounting of the note, and applying the proceeds to the payment of a pre-existing debt, was a sufficient consideration to support such a note in the hands of an innocent holder; and in the case of Mohawk Bank v. Corey, 1 Hill, 512, the court overruled the defense that the note was transferred for a pre-existing debt, because the plaintiff not only took the note in payment, but gave up the old securities. It would seem that the Supreme Court of New York now only hold the rule applicable to notes transferred in security, and not as payment. See Manhattan Co. v. Reynolds, 2 Hill, 140.
    It is probable that if the highest court in the State of New York was now called upon to decide this distinct proposition, it would decide it in accordance with the general decisions on that subject, adopted by other courts, and not adhere to the opinion delivered in the case of Coddington et al. v. Bay.
    The Supreme Court of Connecticut, in the case of Brush v. Scribner, 11 Conn. 388, decide that a pre-existing debt is a valuable *consideration, and will protect an innocent holder of such paper.
    That suit was founded on a note made in New York, by Brush and Cook, for $320.50, payable to A. S. Scribner, or his order, and was indorsed in blank.
    The defendant claimed that this note had been made and indorsed for the purpose of being discounted in the Fairfield Bank, for the benefit of the makers, and, for that purpose, had been delivered to one Stevens, who had no right to it at all; and that he had fraudulently negotiated it in part payment of an antecedent debt, and partly for goods. The plaintiff had no notice of any objection to Stevens’ title to the note. The plaintiff had a verdict, and the defendant moved for .a new trial, because the court charged the jury that the previous indebtedness of Stevens was a sufficient valuable consideration. The case of Coddington et al. v. Bay was cited and relied on; the more so, as the cause of action accrued in the State of New York ; and it was insisted, for the defendant, that the laws of New York, and the decision of her courts, ought to govern the case.
    Chief Justice "Williams delivered the opinion of the court. He first lays it down as a well-established elementary rule of law, that “if the assignment of a note is a fraud upon the indorsor or maker, yet a bona fide holder, for a valuable consideration, without notice, will be protected in receiving the paper in the usual course of business.”
    “Negotiable notes, bills of exchange, and bank notes, are all placed on the same footing, and for the same reason; because these principles would, alone, secure their free circulation.”
    “ If one puts it in the power of a servant, or any one else, to make himself appear the owner, he shall suffer, if any one does, for his misplaced confidence.”

      “It is denied that a, pre-existing debt is a valuable consideration spoken of in the books ; it is true that in those cases there was a present consideration passing, but then there is no distinction made ; it is laid down in broad terms ; and if such paper can not be safely taken in payment of a pre-existing debt, *it can not be said to have a free circulation, and thus the groat object is defeated.”
    “ The more exceptions that are introduced, the more will be the embarrassments of the circulation; and the injury to the circulation of bills and notes must be nearly as great, if they can not be passed in payment of antecedent debts, as if they could not be passed for goods.”
    “ The amount of such paper, passed to the custom houses, banks, etc., is so great, that the court will not make any such rule, unless the law requires it. No case is cited to show that the term valuable consideration means in a limited sense.”
    He then reviews the American cases, and cites Payson v. Coolidge, 2 Gallison, 233, where Justice Story says, “there is no foundation for the distinction, asserted by the defendant’s counsel, as to receiving such a draft for a pre-existing debt. Although a debt be already due, the party who receives such a draft, in part payment, thereby as much gives credit to the drawer and acceptor, as a party who advances his money upon the draft.” In the same case, appealed, 2 Wheat. 66, 73, Chief Justice Marshall says, “that, in all cases, the person who receives such a bill, in payment of a debt, will'be prevented from taking other means to obtain the money duo him; and the mere circumstance that the bill was taken for a pre-existing debt had not been thought sufficient to do away the promise to accept.”
    He then cites the case of Townley v. Sumrall, 2 Pet. 170, 182, in which Story, J., says, “it can make no difference in law, whether the debt, for which the bill is taken, is & pre-existing debt, or money then paid for the bill. In each case there is a substantial credit given by the party, to the drawer, upon the bill, and the party parts with his present right at the instance of the promisee.” Such he decides to be the law of Connecticut.
    He then reviews the cases of Coddington et al. v. Bay, and Bay v. Coddington et al., and although he admits the correctness of the decision of those cases, upon the case made, yet he does not think it was necessary to decide this point in those *cases, and thinks the cases subsequently decided, being only of the Supreme Court of that state, ought not to be considered of very great authority in other courts, for, even in that state, the court of errors might, if the point really arose, adjudge otherwise. The motion for a new trial was overruled.
    The court will recollect, that, in the agreed case of Riley & Van Amringe v. Johnson et al. there were two notes, of $1,500 each. The first one sued on was lost in this court. The plaintiffs, finding that they had such bad luck in the slate courts, sued on the other note in the United States Circuit Court, and, at the December term, 1841, obtained a verdict, under the charge of Justice McLean, that the payment of a pre-existing debt was a sufficient valuable consideration to protect the holder, without fraud or notice. The defendant moved the court for a new trial, on account of such instruction; the court divided in opinion, and the motion was certified to the Supreme Court, and the motion failed.
    The case of John Swift v. George W. Tyson was tried in the southern district of the United States court for New York.
    This action was instituted on a bill of exchange, dated at Portland, Maine, on May 1, 1836, for $1,536 30, at six months, drawn by Nathaniel Norton and J. S. Keith, upon, and accepted by, the defendant; the bill having been drawn to the order of N. Norton, and by him indorsed, before it became due, to the plaintiff. The bill had been received from the drawer, N. Norton, in payment of a note made by Norton and Keith, which had been protested at the Bank of Maine. The acceptor resided in the State of New York, and the defense was, that the same, with acceptance of other bills, had been given for lands in Maine, the title to which was imperfect, of which lands the drawers represented themselves to be the owners, and, also, that the lands were falsely and fraudulently represented to be of good quality, and of great value. The plaintiff had received the bill without any knowledge of the consideration for which it was accepted. The defendant offered evidence of the bad quality of the land, and the want of *title to the same in the drawers of the bill, and that the representations of the drawers, as to the land, were false and fraudulent. Whereupon the plaintiff objected to the admission of such testimony, or any testimony as against the plaintiff, impeaching or showing the failure of the consideration on which the said bill was accepted. And the judges divided in opinion on the point of law, whether, under the facts, the defendant was entitled to the same defense to the action as if the suit was between the original parties to the bill; whether such evidence was admissible as against the plaintiff; which division and point of law was certified up to the Supreme Court, to be there finally decided.
    At the January term of the Supreme Court for 1842, this case was hoard, and is reported in 16 Pet. 1.
    The court decide;
    1. That there is no doubt that a bona fide holder of a negotiable instrument, for a valuable consideration, without any notice of the facts which implicate its validity, as between the antecedent parties, if he takes it under an indorsement, made before the same became due, holds the title unaffected by those facts, and may recover thereon, although, as between the antecedent parties, the transaction may be without any legal validity.
    2. The holder of negotiable paper, before it is due', is not bound to prove that he is a bona fide holder, for a valuable consideration, without notice; for the law will presume that in the absence of all rebutting proof; and, therefore, it is incumbent on a defendant to establish, by way of defense, satisfactory proof of the Contrary, and thus to overcome the prima facie title of the plaintiff.
    3. That section 34 of the judiciary act of 1789, which declares, “that the laws of the several states, except where the constitution, treaties, and statutes of the United States require, or otherwise provide, shall be regarded as rules of decision, in trials at common law, in the courts of the United States, where they apply,” has uniformly been supposed, *by the Supreme Court, to be limited in its application to state laws, strictly local; that is to say, to the positive statutes of the state, and the construction thereof, adopted by the local tribunals, and to rights and titles to things having a permanent locality; such as the rights and titles to real estate, and other matters immovable, and infra territorial in their nature and character. The section does not extendto contracts, or other instruments of a commercial nature; the true interpretation and effect of which are to be sought, not in the local tribunals, but in the general principles and doctrines of commercial jurisprudence'.
    Mr. Justice Story, delivering the opinion of the court in this case, says; “We have no hesitation in saying, that a pre-existing
      debt does constitute a valuable consideration, in the sense of the general rule already stated, as applicable to negotiable instruments.”
    And again : “It is for the benefit and convenience of tho commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass, not only as security for new purchases and advantages, made upon the transfer thereof, but also in payment of, and as security for, pre-existing debts. The creditor is thereby enabled to realize, or to secure his debt, and thus may safely give a prolonged credit, or forbear from taking any legal steps to enforce his rights. The debtor, also, has the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper can not be applied in payment of, or as security for, a pre-existing debt, without letting in all the equities between the original and antecedent parties, and the value and' circulation of such securities must be essentially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then, by circuity, to apply the proceeds to the payment of his debts.”
    The very question, in this case, has been, as above, fully settled by a respectable state court, and by the Supreme Court *of the United States. Inasmuch as the Supreme Court follows the state courts in the decision of all local questions, it is but right, so far as the general principles of the common law are concerned,, especially commercial law, that the state courts should be governed by tho Supreme Court; and this should be done, if not as a matter 'of absolute authority, at least good policy would require it. Otherwise, we will have the same question decided differently in the different courts, in the same state, and it will lead to various shifts and devices to sue in that court which will give the most favorable judgment. This would lead to injustice and confusion.
    And where can we look for tho rule of decision on such questions, with the same satisfaction, as to the Supreme Court of our own country? Good policy would require this, but does this question rest upon that ground alone ? I think not.
    At this time, bills of exchange and notes, in some form, constitute, in a great measure, the currency of the country, and, in various ways, represent the wealth of the land. Those instruments being indispensable in trade, ought not to be embarrassed in any respect; and, so long as the present mode of doing business is continued, it seems to me, that the negotiable paper, in the usual course of business, should pass as freely as bank notes, and, whether taken for a past debt, or a present consideration, should make no difference, or be inquired into. The object of such instruments is to supply the place of money, and that can not bo carried out fully only by putting them on the same footing.
    The only real argument attempted to be set up for the rule, as laid down in Coddington v. Bay, is this: that the party, taking the paper for a pre-existing debt, loses nothing if he (ails, and makes that a clear gain if ho succeeds; and this reasoning assumes, that the original cause of action remains, in every respect, unaffected ; and that the party may, and can, proceed upon that in the same manner as though he had not taken the new paper.
    *We can suppose a case of that sort,, but would it be the ordinary kind of case? I presume not; if taken in payment, the original debt is satisfied, at least until the security fails; if taken in payment, or renewal of an old debt, the old note is generally given up or canceled; and this last is the ordinary case of such paper.
    Undoubtedly there will be some hard cases; but it is better that some imjtrudent men, who put it in the power of any one else to appear to be the owner of paper, who, in fact, is not entitled to it, should suffer, than that the whole system of bills and notes should be embarrassed by exceptions in their favor. Besides, the consideration of paying an old debt it seems to me, ought to be as much favored as the contracting a now debt, or submitting to the operation of having the paper shaved.
    Will the court undertake to say, that it is not in the ordinary course of business to pay an old debt ? It is well observed, by the counsel for the plaintiff, in Swift v. Tyson, “that it was once the ordinary course of trade to pay debts, and should be yet.”
    Taking the weight of authority into the account, and the ground on which it rests, I think that this court should not hesitate to follow the rule laid down by the Supremo Court of the United States. In doing this, no one is injured, for it is only enforcing a good rule, that has, in some instances, been departed from; it is not adopting any rule which is to change any rights of property; and if it has a tendency to prevent one from parting with his name in a negotiable shape, it might, in that respect, operate beneficially.
    If the rule, as contended for, as laid down in Coddington v. Bay, be established by this court, where will the effect of it cease? If the holder of a negotiable bill or note can be met with the same defense that could be made to the original payee, from whom ho received it, what becomes of all that class of bills and notes made for the accommodation of some of the parties? None of the original parties to such paper could maintain any action on it.
    ^Shannon & Alexander, and Thomas Alexander, for defendant:
    The question arising in this case is whether the indorsement of a negotiable note, before due, and without notice, but on aceount of a precedent debt, will subject the indorsee to all the equities existing between the original parties.
    It is not denied that, as between indorser and indorsee, a precedent debt is a valid consideration; nor is it urged that the fact of the taking a negotiable note, by indorsement, for a precedent debt, constitutes a defense for the maker, at the suit of the indorsee; but it is claimed that this circumstance throws the indorsee back on the title of the indorser, and affects him by all the equitable circumstances existing between maker and payee.
    “ The liabilities of parties to negotiable paper have been fixed on certain principles which are,” or at least have been supposed to be, “ essential to the credit and circulation of such paper, and these principles originated in the convenience of commercial transactions.” 6 Pet. 59.
    The law was founded on commercial policy, and the liabilities of the parties on the law.
    It was supposed to be necessary, for the advancement of trade, that the most free circulation should be given to bills and notes, and by protecting third persons, who might receive such evidences of debt for a valuable consideration, and without notice, that free circulation was to be obtained. Then, going on the hypothesis that the foregoing principles are true, it is thought that the following propositions can be amply sustained :
    1. That the indorsement of a negotiable promissory note, before maturity, without notice, but on account of a precedent debt, is not such a transfer as ought to be favored in law, on the grounds of commercial policy.

      2. That such a transfer is not a taking for a valuable consideration, and in the usual course of trade, within the meaning of those terms, as applicable to this class of cases.
    *The rule of law is, that an indorsee, who receives a negotiable note, bona fide, before due, without notice, and for a valuable consideration, shall not be affected by the equities existing between the original parties to the note.
    The reason of this rule, as all the authorities agree, is, that the indorsee, in such case, having parted with his property, or money, on the faith of the maker’s promise to pay, and having incurred loss thereby, is entitled to protection; and, when one of two innocent persons must suffer, by the fraud of a third person, it is but just that he should sustain the loss who gave his name to the negotiable security, and permitted it to go into circulation. Chitty on Bills, 90 (9 Am. ed).
    In this ease, tested by the reason and spirit of the rule, it can not be difficult to come to a just conclusion, and we would have supposed that, were it not for some recent dicta of courts, the case would be plainly with the defendant in error.
    In the case of De La Chaumette v. Bank of England, 9 B. & C. 208, the plaintiff brought trover for a bank note, which had been presented to the bank, and by it detained, on the ground that it had been stolen. The court held, that the bank, having proven the note to have been stolen, it was incumbent on the plaintiff to prove that he gave full value for it.
    The principle on which this case was decided can be seen at a glance. Suppose the plaintiff to have been the thief, it is very evident, is it not, that he could not recover under any circumstances? Well, suppose him to have been the indorsee of the thief, and that he had not given a valuable consideration for the bill, the question then turns on the equities of the parties, and the question, 11 Did the indorsee part with his money or his property, and did he incur loss, or create'new responsibility ? ” naturally arises, and is determined in the negative; and, from this state of facts, it is adjudged that the plaintiff can not recover. Thus, the plaintiff was thrown back on the title of the indorser, as it were, and the onus prdbandi lay on the plaintiff to prove a full value paid; and unless he done so, that he had no superior equity. Then, it may be asked, has the plaintiff in error proved that he paid full value for this *note ? If he took the note for a precedent debt, he has paid no value. Tie has parted with no money, or other property ; and, it was no discharge of the precedent debt, Unless tho note was not only taken in its payment, but at the time it was expressly agreed between him and Benham that it should be an absolute discharge of the debt. Tho taking of this note, then, leaving tho precedent debt precisely as it stood before, so far as the record shows, the plaintiff in error is not within the reason or protection of the rule of law in question.
    A bill of exchange, or promissory note, either of the debtor or any other person, is not payment of any precedent debt, unless it be so expressly agreed. 5 Johns. 68; 7 Johns. 311; 9 Johns. 310; 8 Johns. 389; 11 Johns. 513; 12 Johns. 409; 6 Cranch, 264; 12 Pet. 57; 1 Salk. 124; 8 Ohio, 528; 8 Conn. 472.
    The record in this case shows no such agreement, therefore tho plaintiff in error is not an indorsee for a valuable consideration, within the reason of the rule ; and we wish it to be borne in mind by the court, that a note in such case, according to the authorities, although taken in payment of a precedent debt, is not payment unless so expressly agreed at the time, and then only on the principle that an individual has a right to “discharge his debtor without any consideration.” 6 Cranch, 254.
    “ A distinction is also taken between a third person, who takes a note or bill from another, and has actually advanced goods or money on the credit of tho bill or note, and where he has not done so, but is merely a creditor on a former account. In the latter case, he is frequently to be considered merely as an agent, and .not a holder for value, and must therefore prove his debtor’s right to the security, where it has been unduly obtained, or lost or stolen.” Chit. Bills, 92, 9 Am, ed.
    The jury having found that the note in question was fraudulently obtained, is not the last quotation from Chitty directly in point ? It most certainly is, if law ought to settle this ^question, for this is the identical kind of a case contemplated by the learned author.
    The statute (Swan’s Stat. 589) enacts, “ that no bill of exchange, or promissory note, that shall be drawn or made after the passing of this act, shall, though it may have been given for a usurious consideration, or upon a usurious contract, be void in the hands of an indorsee, for evaluable consideration, unless such indorsee had, at the time of indorsement, actual notice of such usurious consideration,” etc.
    This statute, the court will perceive, was passed to alter the common law on that subject; and after its passage, in an action on a bill or note drawn or made after it was passed, by an indorsee against the maker, if the defendant should succeed in showing that such bill or note was founded on a usurious consideration, then the plaintiff was required to show that he gave value for it. Chit. Bills, 110, 9 Am. ed.
    In the case of Vallance v. Siddell, 2 N. & P. 98, the precise question was raised, whether an antecedent debt was a valuable consideration within the meaning of the term as used in the statute (p. 589, 3, C. 93), and the court there decided that the statute only protected bona fide holders of bills or notes tainted with usury, who have discounted such bills or paid valuable consideration for them at the time of indorsement, “and does not include a bona fide holder who has taken such bill in payment of an antecedent debt." See also Chit. Bills, 111, a, note at the bottom, 9 Am. ed.
    Hero, then, this identical question has been settled by the highest judicial tribunal of England, a country of all others in the world the most famed for its legislation and its judicial decisions in favor of commercial advantage; and in accordance with this principle, cases have been decided in the English courts for more than two hundred years.
    In Heath v. Samson, 2 B. & Ad. 291, it was held that in all cases where, from a defect of consideration, the original payee can not recover, the indorsee, to recover, must prove on the trial that ho gave value for the bill or note. The same is held in 4 B. & C. 325. *The case of Patterson v. Hardover, 4 Taunt. 115, was an action by an indorsee on a bill of exchange, which, or the proceeds of which, had been embezzled, and for which the defendant had received no value. In this case Judge Heath says: “That even in this case of simple loss consideration must be shown, as in Samson v. Weston. In the case of Miller v. Race, Grant v. Vaughen, etc., there was proof that a valuable consideration had been paid by the holder, but not so in this case. If it were in no case necessary to prove consideration paid, all the banking houses in London would be converted into receptacles for stolen bills."

    And Mansfield, in the course of the argument (in the same case), said it had been ruled over and over again that consideration must be shown.” And Judge Heath said: “ The law had been so settled these one hundred and fifty years.”
    In the case of Fancourt v. Bull, 1 Bing. N. C., 27 Eng. C. L. 543, 681, the court say that a lawful possession and indorsement,, unless the indorsement was for value and without notice, would give the indorsee no better title than this indorser had, and not a title against the world. In this case, it will be observed, that the bill was given for a pre-existing debt.
    In Chitty on Bills, 937, 938, the author says that “in an action on a bill of exchange, by an indorsee, if it appear that the defendant was defrauded out of it, or made it under duress, or received no value for it, the plaintiff must be prepared to prove for what, value he became the holder.”
    In Collins v. Martin, Chief Justice Eyre says that “if it can be proved that the holder gave no value for the bill, then, indeed, he is in privity with the first holder, and would be affected by everything which would affect the first holder. This is saying, ‘You have the title, but you shall not be heard in a court of justice to enforce it against good conscience.’ ”

    Numerous other cases might be referred to in the English reports, but it is unnecessary.
    It would appear, then, that if this cause were pending in “judicial tribunals ” of that country, the plaintiff in error would ^certainly fail. A precedent debt is not a valuable consideration, within the meaning of that term, there.
    Then why should we, in Ohio, extend a law founded on commercial policy further than England? Their interests are, in the-main, commercial, ours agricultural. It is from England that Ohio and her sister-states derive their notions of commercial law, and is it reasonable, or can it be good policy for us to go further in that direction than England ?
    In consonance with this view of the case, New York, one of the greatest and most commercial of our sister states, has regulated her policy. That a precedent debt is not a valuable consideration, within the meaning of the term, as applicable to this class of cases, has been decided and approved again and again in the highest court of that state. 3 Johns. Ch. 260, 263; 6 Wend. 622; 9 Ib. 172; 10 Ib. 85; 12 Ib. 600; 13 Ib. 606; 16 Ib. 661; 21 Ib. 499, 500.

      In 8 Ohio, 528, the court decide similarly the same question.
    In the case of 11 Conn. 388, the note was indorsed to the plaintiff, in part, for the payment of a precedent debt, and in part for goods delivered at the time. Consequently, the question now under consideration was not properly before that court. And in 5 Conn. 521, that court having made what we claim, at least as would seem, a decision in favor of the doctrine we advocate, the case in 11 Conn, ought not even to be considered as the judgment of that court on the question at issue here. The case in 11 Conn, was decided correctly, from the facts presented, because the plaintiff had parted with his goods on the faith of the defendant’s promise, and thus had given value for the note. The dictum in 11 Conn, is based principally on the cases of Payson v. Coolidge, and Townly v. Sumrall. The court will perceive that, in the first of these cases, founded in 2 Wheat. 66, 73, that the defendant had no defense, either as against the payee or indorser, and no such question thought of, as presented to the court in this case. And, in the latter case, found in 2 Pet. 170, 182, a full and valuable consideration was given at the *time for the bill. And if the question did arise, in either of these cases, it was improperly up; but it would seem that the court had no idea of deciding this question.
    ' Just so in the case of 16 Pet. 1. The bill was, by Norton, indorsed to the plaintiff, in payment of a note made by Norton and Kei'h, and not in payment of a note made by Norton alone. Thus the court will at once perceive, that the plaintiff incurred risk, Norton alone being liable on the indorsement. And it also appears, that the note of Norton & Keith, for which the bill indorsed by Norton was taken in payment, was canceled, thus bringing even this case within that of the Bank of Salina v. Babcock, 21 Wend. 499. “ Such cancellation is equivalent to paying value at the time, and precludes all defense as between the original parties.” 21 Wend. 499. And, for anything that appears, this was what was meant by the court, in the case in 16 Pet. 1. But, if in this we are mistaken, all that we will venture to say, is, that the opinion of the court is against good conscience, and not reconcilable with adjudged cases, and that the supreme court of no state ought even to be asked to make any decision, inequitable in itself, and against well-established principles of law, merely for the purpose =of having them coincide with the federal courts, much less to reverse a decision correctly made for such purpose. This court decided the case of Riley et al. v. Johnson, in 8 Ohio, strictly according to the reason and spirit, as well as the very terms of the rule of law governing this class of cases; and, by applying the only proper test, it was adjudged that a precedent debt alone was not such a consideration as would make the equity of the indorsee superior to the maker.
    “ There are but two cases in which a bill or note is void in the hands of an innocent indorsee, for valuable consideration, and these cases are, when the consideration in the instrument is money won at play, or it be given for a usurious debt." 3 Kent’s Com. 79, 3 ed.; 1 Strange, 155; Doug. 636, 736; 3 Johns. 206, 1 Bay, 223. However, this principle has been modified in England and New York, by statutory provisions ; but would, no *doubt, be the law of this state, in the absence of statutory enactments, if we had here usury laws.
    Here, then, we have a class of cases in which a defense may be made, even against an innocent indorsee, who has paid full value, and that, too, by the maker who has received a full value for the .security, less the excess beyond legal interest, and who'is a party to the usurious contract, made in violation of the law. If this class of cases should be favored as an exception to the general rule, much more should be favored that class where the indorsee receives the security in payment of a precedent debt, and consequently without paying any consideration whatever, with notice, at least of the law, and where the maker has been entirely defrauded out of it — he therefore making his defense. And with what justice can it be claimed that commercial interests are more injuriously affected in this latter case than in the former?
   Wood, J.

The reasons assigned for the motion are :

1. That it was proved, on the trial, that the note on which the suit was brought, was assigned by Benham, the payee, to the plaintiff, before due, and without notice of any matter of defense.

2. That the court instructed the jury, if the note were so assigned, and in payment of a pre-existing debt, the defendant would be entitled to make any defense against the note in the hands of the plaintiff, that he could make if the suit were in the name of the payee.

This motion, it will be seen, therefore, presents the question for the consideration of the court, whether the transfer of a negotiable note, before due, and without notice, and the consideration of the transfer a precedent debt, subjects the indorsee to all the equities existing between the original parties ?

The identical question was before this court in 1838, in the case of Riley & Van Amringe v. Johnson et al., 8 Ohio, 526. It was then hold, that to protect the indorsee against the equities of the maker, the consideration must be actual; the holder must have incurred loss, by giving credit to the paper, or by paying a fair equivalent for it. If neither was done, while the condition of the holder was improved, if a recovery was had, and the note taken merely for a pre-existing debt, by a failure to recover, nothing was lost, the condition of the plaintiff remained without change. The same question had been decided in the same way by the Supreme Court of New York, 10 Wend. 86. And in the court of errors, in the same state. 20 Johns. 637. And the rule-there was considered as settled upon a safe and unanswerable foundation. Several adjudications followed in that state, in which the same doctrine was unequivocally maintained. 12 Wend. 600; 13 Ib. 605. Judge Story, however, thinks it questionable whether the above authorities carry the principle to the extent which has been claimed, though he says, from that period, for a series of years, it seems to have been held by the Supreme Court of that state, that a pre-existing debt was not a sufficient consideration to shut out the equities of the original parties, in favor of the holder. Recent cases, however, in the same tribunal, have shaken in a measure the authorities to which I have referred. 21 Wend. 490; 24 Ib. 115; 1 Hill, 512; 2 Ib. 140.

In 16 Pet. 1, the question was decided by the Supreme Court of the United States at the January term, 1842. The authorities, English and American, are critically and ably examined ; and, in giving the opinion of the court, Mr. Justice Story remarks : We have no hesitation in saying that a pre-existing debt does constitute a valuable consideration, in the sense of the general rule, as applicable to negotiable instruments. That it is for the benefit of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass, not only as security for new purchases, and advance made upon the transfer thereof, but also in payment of, and as security for, pre-existing debts.”

It is believed that the law, as thus settled by the highest judicial tribunal in the country, will become the uniform rule of *all, as it now is of most of the states. And, in a country like ours, where so much communication and interchange exists between the different members of the confederacy, to preserve uniformity in the great principles of commercial law, is of much interest to the mercantile world.

In the case of Riley et al. v. Johnson et al., 3 Ohio, 526, the plaintiffs were not entitled to recover, aside from the principle which I have before stated, as laid down in that case. The evidence was irresistible, that the notes on which the suit was founded, were not received by the plaintiffs, bona fide, but that the entire transaction was founded in fraud.

The point, however, being made and decided that a precedent debt was not a sufficient consideration to protect the holder, without notice, against the equities of the original parties, that decision is overruled, and the reverse now holden to be the law.

In the instructions given to the jury, in the case at bar, the court, in our opinion, erred, and a new trial must be awarded, with costs to abide the event of the suit.

New trial awarded.