upon a ship, to recover for a total
loss, the ship having sunk at sea, it
is not a defense that the insured
sold and transferred his interest in
her before she sunk, where it is
shown that, prior to such transfer,
she received an injury from the perils
insured against, which rendered it
impossible to keep her afloat, and
made her subsequent actual loss in-
evitable. Crosby et al., v. The New
York Mutual Insurance Co.,...369
Duncan v. Great Western Insurance
Company,...

.378

9. Where a vessel is so injured by
the perils insured against that the
assured has no means of saving her,
and she subsequently sinks solely in
consequence of such injury, the loss
of the assured, from the time such
injury is inflicted, is, practically and
in substance, total, notwithstanding
he may, in ignorance of the facts,
have sold and transferred his inte-
rest in her after she received such
injury, and before she was actually
sunk.....
.id

10. The fact that a vessel, after very
slight repairs, does actually perform
many voyages, and with repairs
greatly less than would justify her
sale and an abandonment to an
insurer, does actually continue in
service for many years, being pro-
nounced seaworthy and capable of
performing voyages to any part of
the world, greatly outweighs the
opinion of her master, and survey-
ors, making an examination by his
request, that repairs are necessary,
exceeding half her value; and this
is especially true when, after such
sale and abandonment, the cause of
the leakage, ascribed by such sur-
veyors to injury by perils of the
sea, is found to be two auger holes
bored in her side which may be
stopped at a trifling expense. Kins-
man v. New York Mutual Insurance
Company,
....460

11. Where freight is insured and the
ship is disabled after her service is
in part performed, it is the duty of
the master to earn freight if he can,

by forwarding the cargo by another
vessel, and where, in such case, he
voluntarily gave up the cargo to its
owners, and they sent it on by an-
other vessel, a finding that there
was no evidence that he could have
earned freight, (in the absence of
any proof of the cost of the ship-
ment by such other vessel,) cannot
be sustained. The service having
been in part performed, it is to be
presumed that freight is earned,
unless the plaintiff proves that the
cost of forwarding exceeded the
freight payable by the owner....id

12. Where the service has been in
part performed, and the owner vol-
untarily accepts the goods, freight
pro rata itineris is earned, and may
be demanded. ...

The defendants, an Insurance
Company located in New York,
executed and delivered to J. Day
& Co., of Apalachicola, Florida, a
Marine Policy, being in form a
Cargo Policy, numbered 784.) by
which they in terms, "on account
of whom it may concern, to cover
only property which may be in-
dorsed hereon, by said J. Day &
Co., loss, if any, payable to the par-
ties named in the certificate granted
by said J. Day & Co., and subject
to conditions contained therein, and
not inconsistent with the terms of
this Policy, do make insurance, * *
lost or not lost, at and from ports
and places to ports and places, on
cotton," &c. $250,000 was written
on the margin of the Policy as the
sum insured. With this Policy the
defendants delivered to J. Day &
Co. blank certificates, to be issued
to persons who might contract for
insurance under the Policy; which
certificates state that the person
named in them, respectively, is in-
sured by the defendants; and they
also delivered to J. Day & Co. a
letter of instructions, which states,
inter alia, that said certificates are
each of them considered by the de-
fendants "as representing a Policy
issued by the Company itself."

November 14, 1853, the defend-
ants, by a written certificate of
that date, extended the sum insured
by Policy No. 784, an additional
$250,000. On the 28th of October,
1853, the defendants issued a fur-
ther policy, (numbered 993,) for
$250,000 to J. Day & Co., in form
like that numbered 784.

J. Day & Co. pasted the Policy
No. 784 in a large book, (called
their Policy Book,) entered in it
the substance of each certificate
issued by them, and the fact and
date of issuing it, and also the afore-
said certificate of renewal of Policy
No. 784, and the further Policy
No. 993. The risks attaching du-
ring each month under the certifi-
cates, as these amounts were ascer-
tained, were entered in said Policy
Book, and numbered consecutively
as entered, in a column in which
specific risks were also entered and
numbered as entered.

On the 15th of November, 1852,
J. Day & Co. issued to the plaintiff
one of said certificates, indefinite as
to amount, thereby insuring, under
Policy No. 784, cotton to be ship-
ped by persons, and at and from
places named therein, consigned to
the plaintiff. This certificate was
renewed November 15, 1853, by an
indorsement made thereon by J.
Day & Co., (and entered in said
Policy Book,) continuing the insu-
rance until July 1, 1854. The cot-
ton in question, which was covered
by the terms and embraced within
the insurance stipulated by the cer-
tificate issued to the plaintiff, was
shipped on the 1st and 2d of Feb-
ruary, 1854, and on the 3d was
totally lost by the perils insured
against. Early in February, 1854,
it was ascertained that all risks
taken from the commencement of
the business, including specific risks,
exceeded $750,000 in the aggregate
prior to the time the cotton in ques-
tion was shipped. This suit was
brought to recover the value of the

15. That, as between the plaintiff and
third persons subsequently insured,
whether insured under similar cer-
tificates issued, or upon specific risks
taken subsequent to the issuing of
the plaintiff's certificate, the plain-
tiff's contract, being first in point
of time, gives him priority of right,
and that he is to be protected in
preference to them, even if it be
held that J. Day & Co. could not
bind the defendants for sums ex-
ceeding $750,000 in the aggregate.
That J. Day & Co. having, by the
certificate issued to the plaintiff, in-
sured all cotton described therein
to be thereafter shipped to him,
could not deprive him of the bene-
fit of that insurance by subse-
quently insuring others.........id

16. That, without deciding the ques-
tion whether J. Day & Co. could
make valid contracts of insurance
for sums exceeding $750,000 in the
aggregate the judgment should be
reversed and a new trial granted.
id

Vide FREIGHT, 1, 2.
RE-INSURANCE, 1.

INSURANCE COMPANY.

1. An Insurance Company which,
by the terms of its charter, is au-
thorized for the better security of
dealers, to receive notes for pre-
miums in advance from those who
intend to receive its policies, and to
negotiate such notes for the purpose
of paying claims or otherwise in the
course of its business, has power to
transfer such notes as security for
the repayment of a loan of money
made to the Company, and received
and applied to the payment of losses,
expenses, &c., in the ordinary con-
duct of its business. Scott et al. v.
Johnson,....
213

2. A person who lent money to such
Company, in good faith, on the
transfer to him, as collateral security,
of subscription notes given for pre-
miums in advance, amounting to
over $1,000, and without any notice
that there had been no previous
resolution of the Board of Directors
authorizing the transfer, is entitled
to recover thereon against the
makers, although no such resolution
had been passed. ...
....id

3. Where there is no allegation in the
answer under which usury between
the Company in such case and the
lender can be available as a defense,
it is not error to reject evidence of
the rate of interest charged on the
loan. If proof that the lender
charged more than seven per cent
per annum is not admissible to estab-
lish usury, it is not relevant for any
purpose: it has no bearing on the
question whether the plaintiff is
a bona fide holder in any other
aspect.
...id

4. An Insurance Company, incorpo-
rated by the laws of New York,
cannot make a valid transfer of its
notes, amounting to over $1,000 in
the aggregate, unless it is authorized
by a previous resolution of the Board
of Directors, if such transfer be
made merely as security for a prece-

JUDGMENT.

1. A judgment between two persons,
determining the title to land which
both claim, makes part of the title,
runs with the land, and concludes
all who derive title to such land
from either of those parties, subse-
quent to the recovery of such judg-
ment. Wilson v. Davol,.......619

2. But it does not bind any person
who derives title from either by a
deed or lease executed prior to the
commencement of the action in
which such judgment was recovered.
id

Vide EVIDENCE, 10, 12, 14.

PRACTICE, title JUDGMENT.
JUDGMENT ROLL.

1. Where the chattels of A are
used by B without any agreement
as to compensation, (such use
having begun in an expectation that
B would purchase them,) and such
use is continued until the chattels
are worn out, although B is liable

4. To make payments on account of
extra work done save all items of
work actually done from the opera-
tion of the statute, such payments
must have been made generally on
account, so that they may be pro-
perly applied, as well on account of
the work which is the subject of the
action as of that the liability for
which does not subsequently be-
come a matter of dispute. But pay-
ments made on account, accompa-
nied with a denial of any liability
and refusal to pay for a particular
item, do not operate to prevent the
running of the statute as to that
item.
..id

M

MANUFACTURING CORPORA-

TION.

statute of limitations is a bar to a

recovery for the use which was had

Vide CORPORATION.

1. Where a moneyed corporation
discounts the note of a third person
on the security of shares of its own
capital stock, owned by him and
pledged therefor, and such note is
not paid at maturity, and the direc-
tors of such corporation do not sell
such stock, neither their omission to
sell it, nor their omission to charge
such shares at the amount actually
paid thereon as a reduction of the
capital stock of the Company, affects
the liability of such third person_to
the Company. Butterworth, Re-
ceiver, v. Kennedy,..
143

2. Such facts do not, by force of 1
R. S., 590, § 6, either extinguish the

4. An agreement by which certain
parties agreed to lend to an Insu-
rance Company their notes to
amounts specified, and to renew
such notes from time to time until
a day named, when they should be
paid by the Company, the said
'notes to be given to N. & S., as
special Trustees, to be used by them
as they may think proper for the
benefit of the Company," is not in
contravention of section 7 of "Regu-
lations to prevent the insolvency
of moneyed corporations," (1 R. S.,
591,) which forbids an assignment
or transfer of effects, except to the
corporation directly and by name,
and it is not void on that ground.
Holbrook v. Basset et al., ......147

5. When, under such an agreement,
and in pursuance of its stipulations,
the Company delivered to the so-
called special Trustees, as collateral
security to provide for the payment
of such notes, valid notes of third
persons received for premiums in
advance, and the notes so lent were
discounted and the money paid over
to the Company and used by it for
the payment of its liabilities in due
course of business, the transaction
is valid, the transfer of the collateral
securities is effectual, and the said
special Trustees, or their transferree,
(under a power to transfer contained
in the agreement,) may collect the
said premium notes from the
makers.....
...id

6. Such a transaction is not void
for the want of power to borrow
notes, merely because the Company,
instead of borrowing money with