thers, V. NEW-YORK, on his title, he admits the trespass. But lest the title should be May, 1804. in a third person, the act gives him a right to shew that also. S. Strong & o. Either one or the other acknowledges the trespass. To this, as the whole matter appears on the record, it would not be permitted the defendant on the trial of nisi prius to say the contrary, nor would the plaintiff be called on to prove the trespass done. The general issue then is perfectly nugatory, and must be struck out, but not with costs. Z. Smith. Affidavit of merits sufficient Spencer, J. dissentient. Cornelius J. Roosevelt, against Daniel Kemper. THE plaintiff had in this cause taken an inquest at the last to set aside an circuit, the judge laying it down as a general rule, that any inquest taken at the circuit, and party might take an inquest, but at his peril. with costs. In a policy ef York upon Harison moved to set aside the inquest on a simple affidavit of merits. Per curiam. Whenever an inquest is taken, it is at the risk of the plaintiff; and on such an affidavit as the present, must be set aside with costs. N. B. The court seemed to intimate, that counter depositions of a want of merits, could not be received, as it would be trying a cause on affidavits. Archibald Gracie, against Walter Bowne. THIS was an action on a Policy of Insurance on coffee, fected in New- part of the cargo of the ship Arethusa, from Jeremie, in the goods at twelve West-Indies, to Baltimore or New-York, valued at 20 cents cents per pound the weight will per pound. By the bill of lading the coffee was to be delibe determined vered at Baltimore, paying two cents per pound freight, by the English a note in the margin, declaring "That the freight was to be calculated, and paid on the weight of the Custom-House, at Baltimore," standard, tho' the invoice specify the weight to be French. The only matter in contest at the trial was, whether the coffee being estimated at twenty-five cents per pound, in the policy, the loss should be calculated on the English or French weight. It appeared in evidence, that the standard difference between English and French weight, is eight per cent. 198 pounds English, making 100 pounds French. That in Baltimore, it is the established custom, in cases That in the city of That in paying the May, 1804. A. Gracie, V. of valued policies on goods by weight, to bring the foreign NEW-YORK, into English, by adding or subtracting from it, according to the standard; it being always understood, unless the contrary is expressed, that the English weight is the quantity W. Bowne, actually insured; to bring French into which, eight per cent. is there added to the French. New-York, there is no such usage. freight, where the contract is for so much per cwt. the NewYork merchants are governed by the actual weight there, without regard to the foreign weight, expressed either in the bill of lading or invoice. That in truth, the difference between French and English weight, varies from one to eight per cent. according as the shipment is from different houses, but that the medium is five per cent. On these facts a verdict for the plaintiff was taken by consent for 1187 dollars 50-100, to stand, if the opinion of the court should be, that the standard difference between French and English weight was to be the rule of calcula'tion to be reduced however, to 589 dollars 80-100 if the medium difference was to govern; and, should they determine that the French weight ought to prevail, then to be entered for 259 dollars eight cents. Hamilton and Hoffman for the plaintiff. All contracts are to be expounded according to the interpretation the words will bear in the country where entered into. This is a valued insurance, and the valuation for no other reason than to prevent all reference to the invoice, which an open policy might induce. In contracts for freight, the American acceptation of pound is resorted to. So it must be here, and the standard difference ought to govern, because it is the more certain and uniform. Otherwise there will be one rule for estimating against underwriters a claim for a loss, and another against the underwritten for a demand due on the freight. In Baltimore, our principle is allowed, and, to exclude it, the insurer ought to shew a contrary usage. Harison and Pendleton, contra. A contract is not always to be interpreted according to the language of the lex loci. It may, as here, refer to other countries. The policy attached in a foreign port, and supposing a total loss the invoice must have been referred to. It is only in case of arrival, that the weight can be ascertained here without A. Gracie, V. W. Bowne. NEW-YORK, such a resort, and the very nature of insurance is against May, 1804. the contemplation of safety. The bill of lading is a strong argument for rejecting the standard difference. When that is to govern, it is expressed; ergo, when not so specified, the French is to regulate; more particularly so, as the bill of lading is framed with a view to safe arrival, contrary to the motives of insurance. If, however, any reference is to be made to the English weight, the medium difference ought certainly to prevail, as being more consonant to equitable justice, and equally certain, for the jury have settled it at five per cent. Hamilton in reply-When a contract made in one country, is to be executed abroad, then the foreign parts are adverted to; but though the subject be abroad, if it be to be carried into effect in the lex loci contractus, the law of the place is to govern. The word cents is used in the policy; this proves it was to be confined to this spot, and the pounds like the money, referable to the United States. The policy too, was underwritten without information of the invoice, it must therefore, be thrown out of the question, as the insurance can be interpreted only according to the knowledge of the parties, which never extended to the wording a paper made in Jeremie. Per curiam, delivered by Spencer, J. The only question arising in this cause is, whether the weight of the articles insured is to be considered French or American. The difference between them as stated, and admitted by the case, is agreeable to the standard, eight per cent.--that is to say, eight per cent. is added to the American, on the French weight, to ascertain the weight according to our standard. In the construction of policies of insurance, the intention of the parties is to be sought, from the circumstances attending the transaction, and the usage of the trade. This policy was subscribed in New-York, and it appears to me that the parties could have had reference to no other weight than that of the country where the insurance was effected. If other circumstances were wanted to manifest such intention, they might be found in the use of the currency of this country in making the valuation. In contracts here referring to weight or currency generally, it appears to me, that to intend any other than those in use here, would' NEW-YORK, be doing violence to the intention of parties. May, 1804. V. It is stated in the case, that in paying freight, where the contract is to pay so much per lb. it is the usage in the city R. Cuming. of New-York to be governed by the actual weight, without regard to the foreign weight expressed in the bill of lading, but in cases like the present, there is no usage in New-York. I think the usage and the reason of it, as respects freight, applicable to the present case. In Baltimore it is stated that there is a usage in cases like the present, and that there the weight is ascertained by adding eight per cent. to the French. On the argument it was contended for the defendants, that in consequence of prior insurances, the plaintiff was not entitled to recover beyond the premiums; it was an swered that the object of the plaintiff was to cover the profits on the cargo. The agreement of the parties to the case before the court, supersedes the necessity of any examination of this point. It is expressly agreed, that if the court should be of opinion that the difference between French and English weight as established by the legal standard, shall be the rule or guide, then the verdict to stand. I am therefore of opinion, that in judgment of law, the parties intended the American weight; and, that in ascertaining that, the standard difference of eight per cent. ought to be added to the weight in the bill of lading, and that the plaintiff is entitled to his judgment accordingly. Brown, assignee of Dawson, a Bankrupt, against Robert Cuming. ASSUMPSIT by the assignees of a bankrupt for work money as supercargo of a ship, the defendant can not set off a claim against In an action by assignees of and labor, care and diligence about the defendant's busi- a bankrupt for had and received. The cir- their bankrupt ness, with a count for money due cumstances of the case were simply these. The bankrupt had been supercargo of a vessel belonging to the defendant on a voyage from St. Croix to Philadelphia, and from thence to Amsterdam, with orders to keep the ship fully the bankrupt insured. He, in the course of her voyage advanced money his vessel fully for not keeping for repairs, and also for prosecuting a claim for her reco- insured, the very, which he interposed on her being captured and car- unliquidated. same being then ried into a British port. The vessel however, though insured for $10,000, was not covered for the amount of the E May, 1804. NEW-YORK, repairs, and the sum which she thus stood short insured, the defendant claimed a right to set off. Whether he was entitled to this or not, was the only question. Brown, V. R. Cuming. Hamilton for the defendant. Wherever there is a particular individual agency, all omissions, relating to the subject matter, which induce loss, are objects of set off. Where a party omits to insure, he becomes an insurer. This right we contend for, is in a more emphatical degree to be insisted on in this case, which arises under the bankrupt laws, because they admit of a more liberal set off than any other, by extending it to all cases of mutual credit. 1 Cooke's B. L. 569. Ex parte Deeze. 1 Atk. 228. So in the case of not a case of Smith v. De Sylva Cowp. 469.* That was set off. +1 Rev. Laws N. Y. 347. ed to the de ser, 186 || Damages Riggs contra. Two points may be made. 1st. Whether the demand of the defendant can be set off under the general statute? If not, 2d. Whether under the bankrupt law of the United States? As to the first point, there must be mutual debts; debts mutually due at the commencement Therefore a of the action. Montague on set off, 17. The demand of plea of set off the defendant must be a debt, certain and liquidated; for that the plaintiff was indebt- uncertain, or unliquidated damages cannot be set off. It fendant at the must be such a claim, that for it, indebitatus assumpsit will time of plea lie. Freeman v. Hyatt. 1 Black. Rep. 394 Howlett v. Strickpleaded is bad. Evans v. Pros- land, Cowp. 56. Therefore, uncertain damages, requiring 3 D.&E. the intervention of a jury, do not admit of set off. Weigall v. Waters, 6 D. & E. 488. Here, had the defendant sued, it could not have been, by indebitatus assumpsit, but by a special action on the case, sounding in tort, and bottomed on negligence, in which the plea would have been, not guilty. Hancock v. Entwistle, 3 D. &. E. 434. Suppose the case of a claim for demurrage, and the sum not fixed in the charter party, could it be set off before the amount had been ascertained by a verdict? Clearly not. Then how can the sum not covered be settled, but by a jury, before whom the value of the vessel and the amount insured could be made to appear? Besides, the bankrupt was vested with a discretionary power as to the quantum to be insured; it is only on a gross neglect, or wilful abuse of such power, that Morgue.Cowp, the agent becomes liable to his principal, and stands in the 479. The agent insured with an place of insurer. Where there has been a tort in law, not yet recovered cannot be set off. Moore v. office which the did no guaran. equity of courts has allowed a set off in cases where the a |