justment, which he does, and thereon
debits the infurer with the amount, and
carries the fame to the credit of the af-
fured, it is not payment to him unless
he affent. Bethune and Smith v. Neilfon
and Bunker,
139
11. Where a policy is clear, certain, and un-
ambiguous as to the voyage infured, pro-
pofitions,afking the rate of infurance for
another voyage, cannot be reforted to
as reprefentations to fhew the voyage in-
fured was meant to be restricted to that
defcribed in the propofition. Vandervoort
anr. v. Smith,
155
12. If the acting partner in a concern of two,
cause an infurance to be effected for the
amount of his own fhare, and the policy
ftate it to be on his account, but retain
the general printed words of "when.fo-
ever cife it may concern," the insurance
will be held to have been made on the
joint account, if fuch appear to have
been the intention of the affured, and
to gather this intention the letters of
the allured may be reforted to, though
they were never fhewn to the under-
writer, who fubfcribed on feeing in-
ftructions to infure only on the feparate
account of the acting partner. Under
Juch circumstances, if the policy be for
half the cargo, and, on capture, half be
condemned, and half be acquitted, the
affured can recover only a moiety of the
fum infured. Lawrence v. Seber, 203
13. Under a warranty against feizure on ac-
count of illicit trade, the underwriter is
liable for a lofs by illicit trade barra-
troufly carried on by the master. A
repreientation, in time of peace, that a
veffel fhall fail in bailaft, is subftantial-
ly complied with, though fhe fail with a
trunk of merchandize, and ten barrels
of gun-powder, laden on board without
the knowledge of the owner. Suckley
v. Delafield,
14. If an affured having written feveral let-
ters, ordering infurance, and transmit-
ted them by different conveyances, ar-
rive, after a knowledge of a lofs, with
one of the letters, at a port from whence"
it is forwarded by the poft, he bound
to countermand the order by the fame
mail. Watfon . Delafield,
15. If a veffel be, from fea damage, obliged
to bear away to a port of neceflity, in
order to refit, the wages and provifions,
from the moment of beating away, to
the period of her failing on her origi
nal voyage, constitute a subject of gene-
ral average, the proportion of which
may be recovered in an action of offump-
fit, by the owners of the hip against the
proprietors of the cargǝ. Walden v.
Le Roy,
16. Where the termini of the voyage infured
are preferved, it is n'y a deviation to
touch at any intermediate port; and
though it be refolved on before the voy-
age commence, it is not, on that account,
an altered or a different voyage from
the one defcribed in the policy, and the
infurer will be liable for any lofs before
arriving at the dividing point. Wages
and provifions are fubjects of general
average from the time of being obliged
to bear away to a port of neceffity in
confequence of injuries received, and
recoverable under a policy on the ship.
Henbaw v. Marine In. Comp. 274
17. After an abandonment and payment of
lofs, a purchase of the property insured,
by the agent or correfpondent of the
underwritten, though made after con-
demnation, is for the benefit of the in-
furer if he elect, therefore the proceeds
of a purchase so made, and any cargo
in which they may be invested, become,
if he please, his property, and he may
maintain trover for it, against the af-
fured. United In. Comp. of N. Y. v.
Rebinfon and Hartfborne,
280
18. If an affured, after capture, appoint an
agent to profecute his claim, fuch agent,
after abandonment, becomes the agent
of the affured, and a receipt by him, of
the money for which the property has
been fold, will be deemed a receipt by
the infurer, who must look to the agent
for the amount, and pay the affured his
full lofs without any deduction. All acts, `
by fuch agent, if bona fide, bind the un-
derwriter. Miller and Graham v. De
Perfter and Charlton,
301
19. The arrival of a veffel at a port insured
to, from a port infured from, though
The may have failed fubfequent to the
veffel infured, affords no ground for
prefuming the affured had any know.
ledge of the bad weather the arriving
vefiel had fuftained, nor that the affured
received information of the failing of
his veffel by the one which arrived,
when circumstances fhew it might have
been received another way. A repre-
fentation faying "I am informed of the
veffel's failing, and the is out this day
twenty-fix days," is not an affertion as a
fact that fhe is out twenty-fix days, and
therefore is not a mifrepresentation,
though he may have been out twenty-
feven. If a veffel be infured as out of
time, and the be out one day more than
the information received fpecifies, if
the jury do not find it to be material, the
court will not fay it is fo.
Williams v.
329
Delafield,
20. If an infurance be on a return cargo, be-
ginning the adventure" from and im-
mediately after the loading thereof on
board the faid veffel," at the port of
deftination, with liberty to touch and
trade at two intermediate ports, the po-
1. If two perfons enter a bank at the fame time, one with money and one without, the latter of whom informs the cafhier it is to be depofited on his account, this circumstance alone, without any acts of the other party confirming fuch account, will not justify the cashier in carrying the money to the account of the party faying it is his; if he do, and pay money, or give credit on the ftrength of fuch depofit, to fuch person, the bank muft bear the lofs. Winter v. Bank of N. York, 337
tered up and fued out against both, the court will not fet them afide on the application of him who did fign, nor even of him who did not fign, but with refped to him, they would order that no execution fhould go against his perfon or goods. Such bond and warrant of attorney are good against the party executing, who, on a joint bond fo figned may plead non eft factum. If an execution be fued out for more than is due, the court will not, merely on that account, fet it afide, if it appear that the Sheriff has received inftructions, though not indorsed on the writ, to levy only what is actually owing, but the defendant, though his application be denied, will be entitled to cofts, if it do not appear that the directions to the Sheriff were given before levy made. Green and Mofber v. W. & J. Beals,
2. One partner cannot maintain affumpfit against another for a balance due on a joint tranfaction, unless evidence be given of an exprefs promife. Cafey & Lawrence v. Bruft,
ing the cause into this court, plead the general iffue. Strong and others v. Smith, 28
2. To a plea of a judgment recovered, a replication denying the fact may conclude to the country. A plea merely negativing facts is not a special plea. The indorfing a plea by counfel, is a figning. Manhattan Com. v. Miller, 60 3. If an adminiftrator by his plea in this
court admit affets, on which there is a regular judgment entered, it will not be fet afide to let in a plea of a judgment confeffed in the common pleas after filing the plea in this, not even though the judgment taken on the affets admitted be for a few cents more than in ftrictness appear to have been acknowledged. Tremper v. Wright, 101 4. If a defendant do not plead his discharge under the infolvent Law, the court will not afford a fummary relief. Crofs v. Hobfon, If a plaintiff declare in trefpafs generally, and the defendant plead liberum tenementum, fetting out the close with metes and bounds, the plaintiff fhould new aflign. If he do not, and conclude with an averment, it is fatal on fpecial demurrer. Hallock v. Robinfon, 233 6. If the indorsement of a firm be stated in a declaration on a bill or note to be made to them as perfons "ufing the name, style and firm" indorsed, and that they "indorfed the faid note the proper hand-writing of one of them in their faid co-partnership name, ftyle and firm being to fuch indorsement fubfcribed" it is good on general demurrer, Kane v. Scofield, 368
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