..id

upon a ship, to recover for a total by forwarding the cargo by another
loss, the ship having sunk at sea, it vessel, and where, in such case, he
is not a defense that the insured voluntarily gave up the cargo to its
sold and transferred his interest in owners, and they sent it on by an-
her before she sunk, where it is other vessel, a finding that there
shown that, prior to such transfer, was no evidence that he could have
she received an injury from the perils earned freight, (in the absence of
insured against, which rendered it any proof of the cost of the ship-
impossible to keep her afloat, and ment by such other vessel) cannot
made her subsequent actual loss in- be sustained. The service having
evitable. Crosby et al., v. The New been in part performed, it is to be
York Mutual Insurance Co., ...369 presumed that freight is earned,
Duncan v. Great Western Insurance unless the plaintiff proves that the
Company,

...378 cost of forwarding exceeded the
9. Where a vessel is so injured by

freight payable by the owner., ..id
the perils insured against that the 12. Where the service has been in
assured has no means of saving her,

part performed, and the owner vol-
and she subsequently sinks solely in

untarily accepts the goods, freight
consequence of such injury, the loss

pro rata itineris is earned, and may
of the assured, from the time such

be demanded.
injury is inflicted, is, practically and
in substance, total, notwithstanding The defendants, an Insurance
he may, in ignorance of the facts,

Company located in New York,
have sold and transferred his inte-

executed and delivered to J. Day
rest in her after she received such

& Co., of Apalachicola, Florida, a
injury, and before she was actually Marine_Policy, being in forma
sunk....

Cargo Policy, numbered 784) by
10. The fact that a vessel, after very

which they in terms, “on account
slight repairs, does actually perform

of whom it may concern, to cover
many voyages, and with repairs only property which may be in-
greatly less than would justify her

dorsed hereon, by said J. Day &
sale and an abandonment to an

Co., loss, if any, payable to the par-
insurer, does actually continue in

ties named in the certificate granted
service for many years, being pro-

by said J. Day & Co., and subject
nounced seaworthy and capable of

to conditions contained therein, and

not inconsistent with the terms of
performing voyages to any part of
the world, greatly outweighs the

this Policy, do make insurance,
opinion of her master, and survey-

lost or not lost, at and from ports
ors, making an examination by his

and places to ports and places, on
request, that repairs are necessary,

cotton," &c. $250,000 was written
exceeding half her value; and this on the margin of the Policy as the
is especially true when, after such

sum insured. With this Policy the
sale and abandonment, the cause of

defendants delivered to J. Day &
the leakage, ascribed by such sur-

Co. blank certificates, to be issued
veyors to injury by perils of the to persons who might contract for
sea, is found to be two auger holes

insurance under the Policy; which
bored in her side which may be

certificates state that the person
stopped at a trifling expense. Kins-

named in them, respectively, is in-
man v. New York Mutual Insurance sured by the defendants; and they
Company,

also delivered to J. Day & Co. a

letter of instructions, which states,
11. Where freight is insured and the inter alia, that said certificates are

ship is disabled after her service is each of them considered by the de-
in part performed, it is the duty of fendants as representing a Policy
the master to earn freight if he can, issued by the Company itself."

..460

November 14, 1853, the defend- cotton shipped February 1 and 2,
ants, by a written certificate of 1854, and the complaint was dismiss-
that date, extended the sum insured ed, on the grounds that J. Day &
by Policy No. 784, an additional Co. could not make valid contracts
$250,000. On the 28th of October, exceeding $750,000 in the aggre-
1853, the defendants issued a fur- gate, and that when the risks actu-
ther policy, (numbered 993,) for ally taken had reached that sum all
$250,000 to J. Day & Co., in form certificates of insurance previously
like that numbered 784.

issued became inoperative and void.

On appeal it was held :
J. Day & Co. pasted the Policy
No. 784 in a large book, (called 13. That the certificate so issued to
their Policy Book,) entered in it

the plaintiff was the contract of the
the substance of each certificate
issued by them, and the fact and

defendants, and obligatory from the

time of its delivery. Hartshorne v.
date of issuing it, and also the afore-
said certificate of renewal of Policy

The Union Mutual Insurance Com-
No. 784, and the further Policy

pany,

..538
No. 993. The risks attaching du-
ring each month under the certifi- | 14. That such certificate covered the
cates, as these amounts were ascer-

cotton in question.....

.id
tained, were entered in said Policy
Book, and numbered consecutively
as entered, in a column in which 15. That, as between the plaintiff and
specific risks were also entered and

third persons subsequently insured,
numbered as entered.

whether insured under similar cer-

tificates issued, or upon specific risks
On the 15th of November, 1852, taken subsequent to the issuing of
J. Day & Co. issued to the plaintiff the plaintiff's certificate, the plain-
one of said certificates, indefinite as tiff's contract, being first in point
to amount, thereby insuring, under of time, gives him priority of right,
Policy No. 784, cotton to be ship- and that he is to be protected in
ped by persons, and at and from preference to them, even if it be
places named therein, consigned to held that J. Day & Co. could not
the plaintiff. This certificate was bind the defendants for sums ex-
renewed November 15, 1853, by an ceeding $750,000 in the aggregate.
indorsement made thereon by J. That J. Day & Co. having, by the
Day & Co., (and entered in said certificate issued to the plaintiff, in-
Policy Book,) continuing the insu- sured all cotton described therein
rance until July 1, 1854. The cot- to be thereafter shipped to him,
ton in question, which was covered could not deprive him of the bene-
by the terms and embraced within fit of that insurance by subse-
the insurance stipulated by the cer- quently insuring others....
tificate issued to the plaintiff

id

JUDGMENT.

.85

1. A judgment between two persons,
deterinining 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 judy-
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.

for any period antecedent to six
years before action brought. Ri-
der et al. v. The Union India Rub-
ber Company,
2. The presentation of a bill, con-

taining items of alleged extra work,
within six years before suit brought,
and the payment of such bill

, with
the exception of one item, the accu-
racy of which and liability for which
is promptly denied, will not prevent
the statute barring all right of action
for such item at the end of six years
from the time when the alleged ser-
vice was fully performed. Peck v.
The New York and Liverpool United
States Mail Sieamship Co., .....226

3. The items of debit for the contract
price of the vessel, and for extra
work alleged to have been done,
and of credits for payments made, do
not make a case of “reciprocal de-
mands," within the meaning of sec-
tion 95 of the Code. ..

.id

L

LEASE.

3. The perfection of a title, by pur-
chase at a Sheriff's sale on judg-
ment and execution, extinguishes a
lease given by the judgment debtor
between the time of the Sheriff's
sale and the execution of the Sher-
iff's deed. Wilson v. Davol,...619

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 tho
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.

LIEN.

By attachment-Priority of, on goods
consigned....

.....518

...id

LIMITATIONS, STATUTE OF.

as

use

1. Where the chattels of A are
used by B without any agreement

M
to compensation, (such
having begun in an expectation that
B would purchase them,) and such MANUFACTURING CORPORA-
use is continued until the chattels

TION.
are worn out, although B is liable
for the fair value of such use, the Power to accept bills of exchange. 275
statute of limitations is a bar to a
recovery for the use which was had

Vide CorPORATION.