b. When policy has not attached.
1. Voyage never commenced.
64. Insurance on the cargo of a Prussian ship, from New York to St. Andero
The order for insurance mentioned that the ship would have a clearance for Hamburgh. In an action on the policy, the only evidence given at the trial was the bill of lading and the protest of the captain, admitted by con- sent. The former stated that the goods were shipped for Hamburgh, on account of persons in Stettin; and the captain stated, that the ship sailed from New York, bound to Hamburgh, and that she continued in such in- tended voyage, until being off Cape Ortegal, and meeting with contrary winds, he resolved to put into St. Andero, as safer than to attempt to reach Hamburgh, at that season, and while proceeding towards St. Andero, the ship was captured by the British and carried into Guernsey. On a demur- rer to this evidence, it was held, that the vessel sailed on a voyage for Hamburgh, and not for St. Andero, and that the policy not having at- tached, the plaintiff could not recover, but was entitled only to a return of premium. Forbes v. Church, 159.
Cases and authorities, 162, n. (d) and (e.)
2. Property Insured beyond its Value.
65. Where property is insured beyond its value, the surplus premium shall be returned. Holmes v. The United Ins. Co. 511. See vol. 2, p. 329.
3. Warranty not fulfilled and no Fraud.
66. Property warranted Danish was condemned in the admiralty abroad as French. The plaintiff was a naturalized citizen and no actual fraud ap- pearing, he was allowed to recover back the premium.
Delavigne v. The United Ins. Co. 456. See vol. 1, p. 310. Murrays v. The United Ins. Co. 485.
2. When not returnable.
See Supra, Policy, 6.
67. On a wager policy, whether by our law valid or not, the premium cannot be recovered back. If valid, it ought to be kept, if unlawful, portior est conditio possidentis. Juhel v. Church, 496. See vol. 2, p. 333.
68. A ship was insured from Nantz, in France, to the United States. The insured, in the order for insurance, represented that the ship was French built, and owned by American citizens, and would have on board the origi- nal bill of sale, or an attested copy of it; and also a certificate of the Ameri- can consul. During the voyage she was captured by a British cruiser, and carried into Halifax, and condemned as French property. The captain, in his answers to the standing interrogatories, in the admiralty court, denied all knowledge of the bill of sale, and stated that the certifi- cate of ownership and log-book, were the only papers on board, when the
ship left Nantz, and that no papers had been destroyed or secured by him, and that no papers were delivered by him, except the certificate, which he gave up to the captors.
It appeared, that the bill of sale was, in fact, on board, and afterwards de- livered to the assured, by the master, on his arrival at New York. It was held, that merely having the bill of sale on board, was not a substantial compliance with the representation of the assured, unless it was produced, or capable of being produced, when occasion required; and that it was a material document, essential to the protection of the vessel, and necessary to be on board, and that the insured were, therefore, not entitled to re- cover. Murray and others v. Alsop & Pomeroy, 47. Cases and authorities, 52, n. (a.)
69. A representation that a vessel was out" about 9 weeks" when in fact she was out 10 weeks and four days, not material, if the 10 weeks be within the usual term of a moderate voyage; the mere chance of information is too slight an objection.
The plaintiff having died since the term subsequent to the trial, the judgment ment may be entered of that term. Mackay v. Rhinelanders, 467. See vol. 1, p. 408.
XVI. Seaworthiness.
See Supra, Policy, Infra, Warranty.
XVII. Unlawful trade-Penalty for.
70. Even if a neutral could not lawfully carry on a trade between the mother country of a belligerent and its colonies, which was not allowed to such neutral in time of peace, yet the penalty of forfeiture can attach only during the existence of such unlawful trade, which cannot affect or vitiate a sub- sequent lawful voyage. Kemble & Gouverneur v. Rhinelander, 130.
XVIII. Voyage.
See Premium.
XIX. Warranty.
1. "American Brig."
71. An insurance on "the American brig Mary," is equal to a representation
or implied warranty of neutrality.
Such representation or warranty requires the property to be wholly neutral. An equitable interest merely in a belligerent, is inconsistent with it. Murrays v. The United Ins. Co. 485. See vol. 2, p. 168.
2. " American Property.”
See Supra, Policy.
3. " Illicit," "Prohibited" or " Contraband trade."
72. The warranty "free from any loss which may arise in consequence of a seizure or detention for on account of any illicit or prohibited trade, or any trade in articles contraband of war," construed to exempt the insurer from contraband or a condemnation on that account. (Reversed on both points in the court of errors, 1801.) Laing v. The United Ins. Co. 485. See vol. 2, p. 487.
73. On policy, property warranted neutral.
1st. To comply with this warranty, the insured must conduct himself as a
2d. Actual notice of a blockade supersedes the necessity of notice under the British treaty of 1794.
3d. The sailing with intent to break a blockade, and within a reasonable dis- tance to carry it into execution, is equivalent to an actual breach.
4th. An accidental interruption of blockade by winds or tempests is no dis- continuance of it.
5th. No premium in such case to be returned because the risk had commenced. (Reversed in the court of errors, 1801)
Vos & Graves v. The United Ins. Co. 486.
See vol. 2, p. 469, where the decision in the court of errors is reported.
1. Interest allowed to be taxed after verdict, in cases where the original con- tract carried interest Vredenburgh v. Hallett & Bowne, 425.
2. A. in 1789, advanced to B, a merchant, a sum of money, in consideration of which B. engaged that A. should be interested in certain commercial adventures of B, in proportion to the sum advanced; and promised to ren- der an account to A. of the proceeds, and pay to him his proportion thereof. In September, 1794, B. rendered an account of the adventures to A., and offered to come to a settlement, if A. would give up the written engage- ment of B., which was refused. A. died, and his administrator, in 1799, filed a bill against B. for an account, &c., and it was held, that A. was en- titled to recover, not only the principal of the balance due for his propor- tion of the proceeds of the adventures, but interest from the time B. re- ceived the money, or, at least, from the time he offered to come to a settle- ment in September.
It is a settled rule, that money received to the use of another, and improperly retained, carries interest. Per Radcliff, J.
Cases and authorities, 311, n. (a.)
Lynch & Stoughton v. De Viar, 303.
ISSUE FROM CHANCERY.
I. Discretionary with the Court.
II. To try issue of Adultery. III. New trial on.
I. Discretionary with the Court.
1. In certain specific cases it is the common course in chancery to order an issue to be tried at law, but in all cases, it is in the sound discretion of that If the case do not require the trial of an issue the chancellor ought to decide. Le Guen v. Gouverneur & Kemble, 605. See vol. 1, p. 436.
II. To try issue of Adultery.
2. Feigned issued from chancery to try the fact of adultery. Confessions of the wife connected with other proof, and not fraudulently made, admitted Doe v. Roe, 424.
3. A motion for a new trial on a feigned issue, directed by the chancellor, not decided, on the ground that it properly belongs to the court of chancery. Motion for a new trial on a feigned issue from chancery, refused to be heard. Doe v. Roe, 560, 564.
I. Bond for, when good.
II. Escape from.
III. Law establishing, not contrary to the Constitution of the United States.
1. A bond at common law, conditioned that a prisoner should remain a true and faithful prisoner in the jail, is valid and not a bond for ease and favor within the statute 23d H. 6, c. 10.
But a bond against escapes, which implies a permission to escape on being indemnified, has been held void, &c. Dole v. Bull & Porter, 498.
2. A condition of a bond for the privilege of the liberties within the terms of the act, though not to the extent of those terms, is good.
Quere, whether the sheriff is bound to take such bond?
Dole v. Moulton, 489. See vol. 2, p. 205.
3. An accidental stepping over the line by a prisoner, like a negligent escape and recaption, is not a breach of the condition, unless the sheriff be thereby damnified. Dole v. Moulton, 489. See vol. 2, p. 205.
4. The act, (sess. 24, c. 91,) as to jail liberties, is imperative on the sheriff who is bound to grant the liberties to the prisoner on his tendering a suffi- cient bond; but as this bond is intended only for the sheriff's indemnity, he may waive it, and grant the liberties, without taking the bond; and he will not therefore, be liable for an escape.
Holmes v. Lansing, 73. See 446, 535.
III. Law establishing, not contrary to the Constitution of the United States.
5. The prohibition in the 10th section of the first article of the constitution of the United States, does not extend to the municipal regulation of the present states, which modify the process and proceedings relative to the recovery of debts, as establishing jail liberties, &c.
Holmes v. Lansing, 73. See 446, 535.
Cases and authorities, 75, 76, n. (b) and (c.)
I. Arrest of.
II. Conclusiveness of.
III. Lien of.
IV. Satisfaction of, by Plaintiff, after Assignment and Notice.
V. Trial of Issue of Usury in.
I. Arrest of.
See PRACTICE.
1. The decision of a court of competent jurisdiction is final on the subject matter before it. Le Guen v. Gouverneur & Kemble, 605.
See EVIDENCE. ESTOPPEL. INSURANCE.
2. A judgment docketted or filed does not bind a leasehold estate for years. Vredenburgh v. Morris, 447. See vol. 1, p. 223.
IV. Satisfaction of, by Plaintiff, after Assignment and Notice.
3. After notice of an assignment, satisfaction was acknowledged and entered
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