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28. Upon the receipt of this last letter the case was submitted by The Sun Company to its counsel in New York, who gave his opinion in writing to the effect" that The Sun Mutual Insurance Company's liability under the reinsurance policy cannot be extended beyond the obvious import of the terms in which it is expressed. The letter of Melcher ordering the insurance not having been exhibited to them, nor the explanations of Sawyer made to them, they cannot be affected by them; and hence, if the admission of extrinsic evidence as to what took place between Sawyer and The Ocean Company, when the original insurance was made, varies the case as between that company and Melcher from what it appears to be on the face of the original policy, I cannot see that it is a matter that concerns The Sun Company."

29. January 29 a copy of this opinion was forwarded by The Sun Company to the attorneys in Portland, and attention called to its contents.

30. At the January Term, 1872, the cause was again tried, and the testimony being all in, the case was withdrawn from the jury and submitted to the court to enter such judgment as law and the evidence required. The point was directly made by The Ocean Company that the policy never attached, because the ship never actually or legally sailed under the Rotterdam charter.

31. On the 12th of July, 1872, the case having been printed, a copy was sent by the attorneys in Portland to The Sun Company, with a statement that the cause would come on for argument before the full bench in a few days. Permission was also asked to draw on the company at sight for $500 on account of fees and disbursements.

31. On the 5th of July The Sun Company replied, denying its liability to pay fees, and saying that, "as the suit is against The Ocean Company and not against us, you must look to them for your fees." It is also said in the letter that when the payment of $100 was made, in November, 1869, the case as subsequently developed was not fully understood.

32. A judgment was afterwards rendered in the suit against The Ocean Company for $9,200, and interest from April 27,

33. This judgment was satisfied by payments of The Ocean Company as follows:

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34. The costs in the action which were included in the payment were $574.17.

35. The account of the counsel in the cause for their professional services and disbursements, over and above the $100 paid by The Sun Company, was $1,164.70. This was also paid by The Ocean Company, July 23, 1873, and was reasonable.

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36. Payment of the amount of the judgment and the account for counsel fees, was duly demanded of The Sun Company before the commencement of this suit, and refused.

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The following is the statement by the Circuit Court of its conclusions of law :

$4,234 29

10,086 55

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1. The Sun Company's policy covers the Rotterdam charter. 2. The policy is not void because of any concealment by The Ocean Company.

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3. The judgment in the Maine court against The Ocean Company is conclusive upon the issues there made and decided, and binds The Sun.

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4. This action is not barred either by the Statute of Limitations or by lapse of time.

5. The Sun Company is bound in law to reimburse The Ocean for moneys expended on account of counsel fees, and the costs and expenses in defending the suit in the Maine


6. The libellant is entitled to a decree against the defendant for

1. Amount paid in satisfaction of the Maine judgment. $14,320 84 2. Amount paid for counsel fees, expenses, &c.

1,164 70 $15,485 54

In all

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With interest from July 21, 1873, and the costs in both


Mr. William M. Evarts and Mr. Joseph H. Choate for the appellant.

Mr. E. N. Taft and Mr. Robert D. Benedict for the appellee.

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MR. JUSTICE MATTHEWS delivered the opinion of the court, and, after making the above statement, proceeded as follows:

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By the express terms of the act of Congress of Feb. 16, 1875, c. 77, defining the jurisdiction of this court, in cases such as the present, we are limited to a determination of the questions of law arising upon the record, including the rulings of the Circuit Court, presented in a bill of exceptions. And, as was decided in The Abbotsford, 98 U. S. 440, and substantially repeated several times since," the facts as found and stated by the court below are conclusive. The case stands here precisely as though they had been found by the verdict of a jury.” The Benefactor, 102 id. 214; The Adriatic, 103 id. 730; The Annie Lindsley, 104 id. 185; The Francis Wright, 105 id. 381. Or as it was put in The Annie Lindsley, 104 id. 185, 188: "The question, and the only question, which we can consider is, whether the facts found support the conclusions of law and the decree." The findings of fact being in the nature of a special verdict, we can go neither behind nor beyond them. We cannot correct them by inquiring into the evidence, nor supply any omissions by intendment or inference. The rule applicable to special verdicts was stated in Colline v. Riley, 104 id. 322, 327,-"that the special verdict must contain all the facts from which the law is to arise; that whatever is not found therein is, for the purposes of a decision, to be considered as not existing; that it must present, in substance, the whole matter upon which the court is asked to determine the legal rights of the parties, and cannot, therefore, be aided by intendment or by extrinsic facts, although such facts may appear elsewhere in the record," which needs qualification in its application to such cases as the present; for our jurisdiction, in cases of this description, extending to a determination of the questions of law arising upon the record, may be predicated of facts which appear in any part of it, whether admitted by the

parties in the pleadings, or by stipulation, or found by the court. But it is essential that the findings of fact should state the facts, and not the evidence merely, even although the evidence be sufficient to establish the fact. Mr. Chief Justice Marshall stated this rule in Barnes v. Williams, 11 Wheat. 415, when he said: "Although, in the opinion of the court, there was sufficient evidence in the special verdict from which the jury might have found the fact, yet they have not found it, and the court could not, upon a special verdict, intend it. The special verdict was defective in stating the evidence of the fact, instead of the fact itself. It was impossible, therefore, that a judgment could be pronounced for the plaintiff." This was approved in Hodges v. Easton, 106 U. S. 408. And see Prentice v. Zane's Adm'r, 8 How. 470, and Norris v. Jackson, 9 Wall. 125.

These observations have a material and important application in this case.

It was essential to the establishment of the libellant's right of recovery to show that the risk insured against by the policy sued on was the same which the libellant was adjudged liable for on its policy to Melcher. The policy of the respondent in this suit, although, in substance, a reinsurance, was not so in form. It did not describe the risk by reference to the policy of The Ocean Company, so that the identity between the two could be ascertained by mere comparison. It did not, in fact, allude to any such policy. The risk is described, solely, by words descriptive of the property insured, without a definition. of the interest of the assured. It became necessary, therefore, to aver the identity of the two insurances. This the libel does. But, as it is denied in the answer, it became necessary to prove it. The finding of facts, however, in the Circuit Court does not assert it. It contains other facts bearing on the question. But the conclusion itself is stated, not as a fact, but as a conclusion of law, from the facts found, the facts and the conclusions of law having been separately stated, as expressly required by the act of Congress. The first conclusion of law, in the statement made by the Circuit Court, is that "The Sun Company's policy covers the Rotterdam charter."

The question, therefore, presented to us on this appeal is,

not whether that might be true as a conclusion of fact from the circumstances stated in the findings of fact, but whether, upon the facts found, it must be true as matter of law.

The distinction is obvious and important. The circumstances in evidence might be such, that a jury, or a court sitting to try the case without a jury, would believe, as the more reasonable probability, according to the ordinary and observed course of human conduct, that the fact disputed had or had not actually taken place; and in that case the inference would be one of fact. On the other hand, the facts found might be such as to be, in point of law, inconsistent with any supposition, except that of the existence or non-existence of the fact in controversy, in which case the conclusion is necessary, independently of any belief based upon what is more or less probable, because the law declares the uniform effect of such a state and condition of circumstances. The difference is between presumptions of fact and rebuttable presumptions of law, or presumptiones juris tantum, as distinguished from presumptiones juris et de jure, according to the classification of Best, Law of Evidence, sect. 314, 4th English ed., who states the practical test for distinguishing them thus: "Where a presumption of law is disregarded by a jury, a new trial will be granted ex debito justitiæ; but where the presumption disregarded is only one of fact, however strong or obvious, the granting a new trial is at the discretion of the court in banc." Sect. 323.

In other words, when the testimony has been sifted and weighed, and the actual circumstances of the transaction stated in a connected form, the law, by means of its presumptions, determines whether they establish such a relation between the parties as to give rise to reciprocal rights and obligations, and if so, what legal consequences have followed. The issue to be determined may be one, in form, merely of fact, as whether a particular contract was made, or whether one or both of the parties have been guilty of negligence. The circumstances of the entire transaction having been ascertained and stated, the issue is determined by the interpretation which the law puts upon them. This is an office quite distinct from ascertaining the circumstances themselves by the process of reduction from

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