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,...
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.
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-
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
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
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
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