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Learned v. Duval.

Per Curiam. If an assault and battery be aufficietly proved, or the title to lands comes in question, and it so ap pears to the judge, he is bound to certify, and has no discretion. The cases under the section relative to wilful and malicious trespasses, equally apply to this section. (Sess. 24. c. 170, s. 5-8.) But neither the verdict nor form of pleading conclude the judge; and if, on the evidence, he is not satisfied that the assault and battery were sufficiently proved, he is not bound to certify.

Motion granted. (a)

LEARNED and others against DUVAL, an abscon- [*141] ding debtor.

This court has the same power over the proceedings of the recorder of New York, while acting as commissioner, as when acting as recorder; but they will not exercise the power where the recorder has a discretion by the act, and has acted definitively, as in granting a supersedeas under the act, as to absconding debtors. The regular course is to bring up the proceedings of the recorder, by certiorari, not by an order of this court.

JONES, in behalf of the plaintiffs, presented a petition to the court, praying an order on the recorder of the city of New York, as commissioner, to return the proceedings, and to set aside a supersedas granted by him, under the 21st section of the act, relative to absconding debtors, which was allegedt o have been allowed, after an appeal had been interposed, and upon inadequate secuity.

C. 1. Bogert, contra.

Per Curiam. This court have the same power over the recorder, while acting as commissioner, as when acting as recorder. But there can be no use in having the proceedings brought up in this case. The discretion of the judge or

(a) Grah. Prac. 2d ed. 720, et seq.; 1 Burrill's Prac. 2d ed. 272, et seq.

Crowningshield v. N. Y. Ins. Co.

commissioner, is absolute and definitive, as to the competency of the security; and as a supersedas issued, by which the property was discharged, the act of the recorder must necessarily be final. As we could not correct the proceedings in this case, there would be no use in granting the order prayed for. The regular course of proceeding is not by an order. The proper mode of bringing up the proceedings is by a certiorari directed to the recorder.

Motion denied.

[*142] *CROWNINGSHIELD and others against THE NEWYORK INSURANCE COMPANY.

Where goods were insured in 1796, from Salem to Europe, and from thence to the East Indies, and back to the United States, with liberty to touch, stay and trade at any ports or places on the outward and homeward passages, &c. The ship sailed to Bordeaux, and from thence she went, successively, to the Isle of France, Tranquebar, Pondicherry and Madras, from whence she returned to Pondicherry, and sailed thence to the Isle of France, and from thence in 1797, back to Calcutta, and from thence home.

By a memorandum, written by the insurers in the margin of the policy, in March, 1798, it was agreed, for an additional premium of 10 per cent. paid by the insured, the ship having returned to the Isle of France from Calcutta, and sailed again to the coast of India, that the same should not prejudice the insured.

It was held, that the memorandum was an agreement by the insurer and not a warranty by the insured, and that it covered all previous deviations, and resumed the risk from the Isle of France back to the East Indies, and that the insured were not, therefore, entitled to a return of the additional premium, on the ground of a mistake in the representation as to the actual deviation which had taken place, aud which might not be cured by the memorandum.

THIS was an action of assumpsit, for the return of a premium on a policy of insurance, on goods on board the ship Belisarius, "from Salem to one or more ports in Europe, and at and from thence, or either of them, to any port or ports,

Crowningshield v. N. Y. Ins. Co.

place or places in the East-India or China seas, with liberty to touch, stay and trade, at any of the ports and places, on her outward and homeward passages, in port and at sea, at all times and in all places, as well on this as on the other side of the Cape of Good Hope, until her safe arrival at her port of discharge in the United States, &c. The ship sailed in October, 1796, from Salem and arrived at Bordeaux; from thence she sailed to the Isle of France, thence to Tranquebar, thence to Pondicherry, thence to Madras, from thence she returned to Pondicherry, and from thence sailed to the Isle of France; and in October, 1797, sailed from thence back to Calcutta, where she arrived in December, 1797, and left Calcutta, on her return home in February, and touched at Tranquebar, the Isle of France, and the Isle of Bourbon, from whence she sailed for America, and arrived at Salem, in July, 1798.

In March, 1798, the following memorandum was written, by the defendants, in the margin of the policy. "The ship Belisarius having returned to the Isle of France from Calcutta, and from thence proceeded again to the coast of India; it is agreed, that in consideration of an additional premium of ten per cent., hereby acknowledged to [*143] be received, the same shall not prejudice this insurance."

A verdict was taken, by consent, for the plaintiffs, subject to the opinion of the court on a case containing the above facts.

The return of the additional premium of ten per cent. was claimed by the plaintiffs, on the ground that the actual deviation was not understood by the plaintiffs, and the agreement founded on a mistake. That the actual, was different from the supposed deviation, and the policy being avoided. by the deviation which took place, was not revived by the memorandum, so that the additional premium was paid without consideration.

C. I. Bogert, for the plaintiffs.
Hoffman and Hamilton, contra.

Crowningshield v. N. Y. Ins. Co.

Per Curiam. The object of the memorandum was to cover all previous deviations, and the ship was again to sail and the risk was renewed from the Isle of France back to the East Indies, on the same iter or voyage described in the policy, beyond that place. It is not like a warranty by the insured. It is an agreement by the insurer, who, in case of loss, could not object to pay, on the ground of a previous deviation. The representation that the ship had before come from Calcutta, was wholly immaterial to the risk, and could not affect the interest of either party. Having, then, run the risk, under the memorandum, the defendants are entitled to retain the premium.

Judgment for the defendant.(a)

(a) As to what constitutes a deviation; see supra, p. 15, n. c. to Patrick v. Ludlow.) That a deviation may be waived; see 1 Phill. on Ins. ed. 1840, p. 572, 573, and auth. In Warren v. The Ocean Ins. Co., (4 Shepley, 439,) it was held that where, by the uniform practice of an insurance company, a deviation by the risk, assumed in the policy is waived by the president, for a compensation agreed upon by him and the assured, and the waiver and assent, with the terms thereof, are written across the policy, without any new signature, and recorded by the secretary, a contract so made is binding upon the corporation. And it is the act of the corporation, although not reeerded. As to return of premium, see supra, vol. 2, p. 330, n. (a) to Holmes v. United Ins. Co.; U. S. Dig. tit. Insurance, XVII. ; id. Suppt. tit. Insurance,

END OF APRIL TERM.

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CASES

ADJUDGED IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW YORK,

IN JULY TERM, 1802.

CARPENTER against BUTTERfield.

The issuing of the writ in a cause is, for every material purpose, the com. meucement of the suit.

Where a defendant, after a writ issued against him, of which he had notice and before he was actually arrested, purchased a promissory note, made by the plaintiff, which was endorsed to him for the avowed purpose of setting it off against the plaintiff's demand; it was held the set-off was not admissible.

Where a right of action is vested, and an action commenced, nothing can deprive the plaintiff of his right to recover, except some act done by himself in relation to that right.

A debt or demand, to be set off under the statute, must be an existing debt
or demand, at the time of the commencement of the plaintiff's suit.
Fictio juris is never allowed to work an injury or prejudice to any party.
Per Radcliff, J.

THIS was an action of covenant, on a sealed note, dated the 10th March, 1797, by which the defendant promised to pay the plaintiff 96 pounds, on the 1st May, 1798, &c.

The cause was tried at the Washington circuit, in 1801. The defendant offered in evidence, by way of set-off, a promissory note, made by the plaintiff, to Joseph Dickson, or order, and by him endorsed to the defendant, for a valuable consideration.

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