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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

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

freight payable by the owner.,
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

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

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."


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


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.....

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

, was
shipped on the 1st and 2d of Feb-
ruary, 1854, and on the 3d was 16. That, without deciding the ques-
totally lost by the perils insured tion whether J. Day & Co. could
against. Early in February, 1854, make valid contracts of insurance
it was ascertained that all risks for sums exceeding $750,000 in the
taken from the commencement of aggregate the judgment should be
the business, including specific risks, reversed and a new trial granted.
exceeded $750,000 in the aggregate

prior to the time the cotton in ques-
tion was shipped. This suit was

Vide FREIGHT, 1, 2.
brought to recover the value of the




dent debt, and to a person knowing
that there is no such resolution au-
thorizing the transfer. Smith et al. v.


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, ...


5. When the transfer is made to a
firm, one of whose members is a
Trustee of the Company. the firm
has constructive notice of the non-
existence of such a resolution....d

6. Where the complaint alleges an
indorsement of the note by such
Company to the plaintiff, and the
answer denies the fact of such in-
dorsement, and avers that the trans-
fer was made by some officer or offi-
cers of the Company, when it was
insolvent, to secure a precedent debt,
proof is admissible that there was
no resolution authorizing the trans-


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.




1. Not recoverable in an action
against a carrier for the loss of
goods, if he be free from actual neg-
ligence, not even from the time of
the commencement of the suit.
Lakeman et al. v. Grinnell et al., 625

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-

it is not relevant for any
purpose: it has no bearing on the
question whether the plaintiff is
à bona fide holder in any other


Jish usury,




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-

1. A cause of action against a hus-
band, entitling the plaintiff to a re-
covery of money from him, cannot
be joined with a claim to charge the
separate estate of the wife with the
payment of the amount sought to
be recovered. Palen v. Lent,. .713



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.

Vide EVIDENCE, 10, 12, 14.


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. ..




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


By attachment-Priority of, on goods





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

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

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



stock or the liability of the pledgor
for the amount of his note secured


Vide INSURANCE, 1, 2, 3, 8, 9, 10, 11, 12.


Note by wife used by husband for

the purchase of property used and
enjoyed by both, effect thereof con-
sidered; and complaint thereon
against both held bad. Palen v.



1. See NEGLIGENCE. Liability of own-
er for negligence of servants of con-
tractor in building on his land.
Gilbert et al. v. Beach,

2. Railroad Company not liable for
act of a person, though he may be
in their employment in some capa-
city, if he be not at the time of the
act acting in any matter on behalf
of the Company or attending to their
business, Weldon v. The Harlem
Rail Road Company, ..576

Vide Common CARRIERS, 9, 10.


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,


3. The effect of the charge which
that section requires to be made
is, that no dividends shall thereafter
be made. "until the deficit so cre-
ated be made good from the subse-
quently accruing profits of 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

2. Such facts do not, by force of 1
R. S., 590, 86, either extinguish the

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

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