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Coit & Woolsey v. Smith.-Stedfast, ex dem. Nicoll v. Nicoll.--&c

COIT & WOOLSEY against SMITH.

Policy on horses; one received his death wound during the voyage, and after landing at the end of the voyage died of the wound; held, to be a loss within the policy, and to the full value of the horse. Vide Winton v. Saidler, post.

STEDFAST ex dem. NICOLL against NICOLL.

A posthumous child may take in remainder by devise, although not in esse at the time the particular estate determined. This at common law; we have not the English statute on the subject.

Jones against CASWELL.

A benefit to one party, or a disadvantage to the other, is a good consideration for a promise.

2d. The forbearance of bidding at a sheriff's sale, is an illegal consideration for a promise.

STAGG & SNELL against UNITED INs. Co.

Although a vessel arrive at the destined port, if during the voyage the injury received be such that her repairs would amount to more than her value when repaired, the plaintiffs may recover a total loss. Vol. II.

78

Moore ads. Rundle.- United Inis. Co. ads. Abbot.-&c.

MOORE and POLLOCK ads. RUNDLE and others.

1st. Agents and factors in settling a loss on a policy, are liable for disobeying instructions, and also for want of skill and discernment in their duty.

2d. Held liable on the ground of negligence in their duty, in the same manner as the insurers were liable.

United Ins. Co. ads. ABBOT.

Where there is a total loss on an insurance upon a ship, and the vessel be sold and purchased by the agent of the assured, and afterwards accepted by them, the total is changed into a partial loss, and they can recover the actual loss only. Vide Abbot v. Broome, post.

PATRICK against Haller & Bowne.

SEAWORTHINESS.—A vessel on the same day she sailed, foundering suddenly without any accident, or any known or visible cause, cannot be deemed seaworthy.

SEBOR ads. ABBOT.

Profits are insurable, and it is not a wager, but an interest policy.

Murray, and others, v. Alsop and Pomeroy.--The People v. Byron.

2d. There may be a partial as well as a total loss on profits, as where part of the goods do not arrive, it is partial, and when none arrive, it is total.

3d. A new trial awarded because there appeared real doubt, contradictory evidence and intricacy, and the property of considerable value.

MURRAY, and others, against Alsop & POMEROY.

The insurance was against all risks, but accompanied with a representation that the vessel was French built, and would have on board an original bill of sale to the plaintiffs, with a certificate of our cousul.

Ist. This paper was in fact on board, but not to the knowledge of the master, and therefore, being captured, to no purpose ; it was the same as if it had not existed.

2d. It was material, and, therefore, discharged the defendants.

THE PEOPLE against BYRON.

1st. A guardianship by chancery appointment, or by testament, creates an interest coupled with a power, and therefore, survives.

2d. A surety for two joint guardians, is liable for the conduct of the survivor, as well as for both of them, before the decease of one.

Walker ads. Ballard.—Roosevelt ads. Wilkie.—Ellis ads. Dusenbury.--&c.

WALKER ads. BALLARD.

1st. It is sufficient to satisfy the statute of frauds, that a contract in writing be signed by the party to be charged therewith, the defendant having signed it, is therefore, bound.

2d. An executory contract for the sale of lands, not acted upon by either party for a length of time, (in this case 4 or 5 years,) shall be presumed to have been rescinded.

ROOSEVELT ads. WILKIE.

On an accommodation note, indorsed and made by any prrties, the real borrower and lender are only to be regarded as to the question of usury. .

2d. A verdict set aside, as against evidence, on that question. Vide S. C. post.

ELLIS ads. DUSENBURY.

A person making a note in the name of another as his attorney, is liable personally, as the maker would be, if he have not a competent power. Vide Cottrel v. Thorn and O'Hara, post.

DUNCAN against DuBoys.

A private act was suffered to be read at the trial as public.

Herring v. Sanger.-Nase v. Peck.- Ward v. Haight.

A motion for a new trial by the defendant on that ground was denied, on the plaintiff's producing an exemplification of the act to the court, it being a matter of record.

HERRING against SANGER.

1st. A note of hand given for a prior simple contract debt, does not extinguish it.

2d. If payable at a future day, it suspends the time for payment of the prior debt.

3d. It being negotiable, but not in fact negotiated, but kept till overdue, will not make a difference.

4th. Had it been negotiated, it would be otherwise.

Nase against Peck.

On a writ of right.-An outstanding title here and in ejectment, must appear to be a subsisting title at the time, and not of any antecedent period. Other points were considered by each judge, &c.

WARD against HAIGHT.

A sheriff's inquest is intended to inform the conscience of the court, and unless the inquisition appear to be unjust, the court will not nicely examine into the legality of the evidence admitted.

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