Patrick v. Hallett and Bowne. PATRICK against HALLETT and BowNE. Where a vessel was seaworthy at the time she sailed, and on the morning of the next day, suddenly sprung a leak and was lost, without any stress of weather, or other visible cause, to which the leak could be ascribed, it was held, that the loss was to be imputed to some latent and inherent defect in the vessel, which rendered her unworthy, and for which the insurer was not liable. THIS was an action on a policy of insurance, dated the 31st December 1796, on a vessel called the Peggy, at and from Turk's Island to New-York. The cause was tried at the New-York circuit, the 8th April, 1801, before Mr. Justice Kent, when the jury, without going from the bar, found a verdict for the plaintiff. The deposition of Joseph Millett, mate of the Peggy, taken at Baltimore under a commission, was read in evidence. He deposed that the Peggy arrived at Turk's Island on the 8th November, 1796, and remained there till the 12th, when she went to sea, tight, staunch and strong, and competent, in point of strength and ability, to perform the voyage, and having on board a full cargo of salt, bound to New-York; that in the evening of the same day, the Severn, a British ship of war, pressed three of the crew, The master of the Peggy waited till 8 o'clock in the evening, to endeavour to get back his men, but they not returning, and the Severn having made sail, the Peggy put about, in order to return to Turk's Island to obtain three seamen, to supply the places of those that had been taken out, which was a measure [*77] *absolutely necessary, as the remainder of the crew were not sufficient for the navigation of the vessel. About one o'clock the same night, the man at the helm called out to the witness, that the Peggy was waterlogged, and he went on deck and sounded, and found that she had three and a half feet water in her hold, which she must have made after 12 o'clock, at which time the pumps were tried and the vessel was found tight. They tried, but could not Patrick v. Hallett. keep her free, and, the next day, being in sight of Turk's Island, they quitted her in the boat, and she was wrecked. on one of the islands. The witness further deposed that the loss of the Peggy was occasioned by the sudden springing of a leak, in the manner before mentioned, and not by any storms, violent winds, currents or accidents of the sea. That he himself, the captain and some of the crew made a protest concerning the manner of the loss of the Peggy on Turk's Island, which had been lost in Baltimore, in July last, with his pocket-book, but which protest was substantially the same with what the witness stated in his deposition. Christopher Miller, a sea captain, testified that he thought a vessel might be lost by many ways, within a day or two after she sailed, and yet be seaworthy, and mentioned several instances in which it might happen, such as where the fluke of an anchor strikes in she ship's bottom, or a stone is forced in while the ship lies aground in a dry dock. He knew an instance of a fish having twice forced its horn through a vessel's bottom, which made her leak; but in that case the ship's crew lightly felt the shock. That at Turk's Island the water was seven fathoms deep, and there were no dry docks. Hugh Stocker, a sea captain, also sworn as a witness for the plaintiff, was of opinion that a vessel might spring a leak and be lost, immediately after her sailing, and yet be seaworthy, and mentioned nearly the same instances as Miller, the other witness; but being asked whether such a case as this could happen, unless it was owing to [78] some defect in the timbers or plank of the vessel, both witnesses answered, that it might have happened from a butt starting, which had not been so well fastened, or from some such trifling defect. Both witnesses declared that new vessels, perfectly seaworthy, and on their first voyages, sometimes foundered at sea, from causes not visible or known. Four out of six of the underwriters on the policy had settled the loss, on the first production of the protest and other papers. The judge stated the law to be, that if the vessel VOL. III. 14 Patrick v. Hallett. was not seaworthy, whether the assured knew it or not, the policy was void. The cause was argued by Pendleton, for the defendant, and Troup and Hamilton, for the plaintiff. Per Curiam. On the facts stated in the case, we are of opinion, that the law will intend a want of seaworthiness, because no visible or rational cause, other than a latent and inherent defect in the vessel, can be assigned for the loss; and insurers do not insure against latent defects. The verdict was, therefore, against the conclusion, legally to be drawn from the facts, and there ought to be a new trial, on payment of costs. New trial granted.(a)(b) (a) [Old note.] This cause, after a second trial, came before the court again, on a demurrer to the evidence, which was substantially the same as stated in this case, and Mr. Justice LIVINGSTON, in delivering the opinion of the court, (KENT, Ch. J. dissenting,) laid down the doctrine, that if a vessel be seaworthy at the time of her sailing, and, afterwards, suddenly spring a leak and founder, without any stress of weather or apparent cause, it is a loss by the perils of the sea, and the plaintiff was entitled to recover. (1 Johns. Rep. 241.) But in Talcot v. The Commercial Insurance Company, (2 Johns. Rep. 124,) the court adhered to the doctrine laid down in the above case, and by Marshall, Park, Valin, Emerigon, and other foreign writers on insurance, "that if the ship becomes innavigable, the presumption shall be, that it proceeded from the age and rottenness, or other defect of the ship, unless it be made to appear to have been occasioned by sea damage, or some unforeseen accident;" (Marshall, 2d edit. 156. Pothier, Trait. des Ass. n. 66 Emerig. vol. 1, p. 575, 677, 580,) and Mr. Justice SPENCER, in delivering the opinion of the court in that case, considered that this legal presumption was countervailed by peculiar circumstances in the case of Patrick v. Hallett & Bowne, which distinguished that case from the one then before the (See also, Barne well v. Church, 1 Caines' Rep. 217, 245, 246. 1 Binney, 592.) court. (b) Mr. Phillips lays it down, that "if a vessel spring a leak, or become disabled, or some essential defect is discovered, soon after the risk commences, without any apparent cause from the perils within the policy; or, rather, when it satisfactorily appears that no accident can have happened to occasion the damage or defect, it is inferred that she was defective at the beginning of the risk, and not seaworthy." (1 Phillips on Ins. ed. 1840, p. 324.) Thus where a vessel sailed from London to Portsmouth, where her timbers The People v. Corporation of New York. THE PEOPLE, er relatione PHILIP I. ARCULARIUS [79] AND JAMES DRAKE, against THE MAYOR, AL DERMEN AND COMMONALTY OF THE CITY OF NEW-YORK. Where a person is already in office by color of right, the court will not grant a mandamus to admit another person, who claims to have been duly elected. The proper remedy is by an information, in the nature of a quo warranto. RIKER, in behalf of the relators, moved for a mandamus to the mayor, &c. of the city of New-York, commanding them to admit and swear the relators, as alderman and assistant alderman of the 5th ward, on an affidavit that they had been duly elected, &c. He asked for a mandamus. 1. To the corporation generally, to admit the relators; 2. To the mayor and recorder, to swear them; 3. To James Roosevelt, who had been admitted and sworn as alderman of the 5th were found to be rotten; she was presumed not to have been sound at the time of sailing. (Lee v. Beach, Park, 342. Marsh. 160.) And a vessel that sprung a leak, and filled with water the day after sailing, without any apparent cause, and without having encountered any known accident to oc. casion material damage, was, from this circumstance, considered as not hav. ing been seaworthy when she sailed. (Talcot v. Com. Ins. Co. 2 Johns. 124, & 467. See also Munro v. Vandam, Park, 333, n.; Watson v. Clark, 1 Dow, 336; Coit v. Del. Ins. Co. Wharton's Dig. h. t. No 76, p. 325; S. C. Wash. 375, under name of Cart & Edwards v. Del. Ins. Co.) So where a vessel, the day after her departure from port, springs a leak, which so in. creases as to render it necessary to abandon the voyage, without having en. countered any gale or sustained any damage from the dangers of the sea, she must be presumed to have been unseaworthy at the time she sailed; and the insurers are discharged. (Wallace v. De Pau, 1 Brevard, 252) So in Warren v. The United Ins. Co. 2 Johns. Cas. 231, where a schooner sailed from New York on the voyage insured on the 12th of May, 1799, and on the 14th of the same month, she sprung a leak, in consequence of which the master was obliged to put into the nearest port, and upon a survey of the wardens of the port of St. George, she was found decayed, rotten and unworthy to repair; the court set aside a verdict against the insurers, though the schooner had been overhauled before leaving New York, and the carpenters supposed from the appearance of the upper works, that she was competent to perform the voyage. (See 2 Phillips on Ins. ed 1840, p. 758.) The People v. Corporation of New York. ward, and John P. Ritter, the assistant, commanding them to desist from executing their offices, or show cause to the contrary. The application was afterwards made, for rules to show cause why writs of mandamus should not issue. Riggs and Harison, contra. Per Curiam. Where the office is already filled by a person who has been admitted and sworn, and is in by colour of right, a mandamus is never issued to admit another person; because the corporation, being a third party, may admit or not, at pleasure, and the rights of the party in office may be injured, without his having an opportunity to make [*80] a defence. The proper remedy, in the first "instance, is by an information in the nature of a quo warranto, by which the rights of the parties may be tried. Motion denied.(a)(b) (a) [Old note.] See 1 East, 38. King v. Clarke. (b) People v. Farquer, Breese, 68. See note to Fish v. Weatherwax, 8Upra, vol. 2, p. 217-47, id, 45, id. 56, id. 57, id. 10, 11. But though an office be full, if quo warranto does not lie, mandamus will, supra, vol. 2, p. 219–11. (See Cole on Criminal Informations, 138, et seq. Tancred on Inf. in nat. of a quo war. 18, et seq. Respublica v. Wray, 3 Dallas, 490. Commonwealth v. Dearborn, 15 Mass. R. 25. The same v. Fowler, 10 Mass. 295. People v. Tibbetts, 4 Cowen, 358. The same v. Rip, id. 382, n. The same v. Van Respublica v Slyck, id. 297. The same v. Thompson, 16 Wendell, 655. |