BALDWIN vs. JACKSON.

tody of any one acting as his servant and the use of the furniture by the debtor, with the consent of the officer and creditor, could not of tself vacate the attachment. But, if they were satisfied, that the debt to Crafts was bonâ fide, and his process also, the goods were holden upon his attachment until judgment; notwithstanding that all the intervening time they might have been used by the debtor, from motives of humanity towards her; and that, if they found this to be the fact, the special property was in Baldwin, and the issue should be found for him.

A verdict was returned for the plaintiff accordingly; and, if the foregoing directions were right, judgment was to be rendered on the verdict; otherwise, it was to be set aside, and the plaintiff to become nonsuit.

Cooke, for the plaintiff.

The Solicitor-General, for the defendant.

Per Curiam. There is no reason why the verdict in this case should not stand; the jury having found that there was a debt due to Crafts, the first attaching creditor, and that his attachment was instituted, and the process carried on, bonâ fide, to judgment.

It is true, that the attaching officer must keep possession of the goods attached to him, in order to prevent the effects of a second attachment. But this possession needs not to be personal. In many cases it cannot be so. It is sufficient that the officer should lock up the goods, and retain the key; or put them into the custody of some one acting as his servant; the purpose being to give notoriety to the attachment.

This was an attachment of furniture, which was put into the custody of a young woman boarding in the house, and the debtor, who was a female, was permitted to use the furniture. This will not

avoid the special title, which Baldwin, the attaching officer, acquired. The use, permitted to the woman, was from motives of humanity and compassion, and not with a design to cover the property against creditors * by a pretended attachment. Jackson, [* 134] who made the second attachment, had notice from the

young woman who had the custody of the goods, that they had been previously attached. The whole transaction appears to have been innocent and laudable, and has not divested the special property o. the plaintiff.†

Judgment on the verdict.

+ Train vs. Wellington, post, 495. — Bridge vs. Wyman et al, 14 Mass. Rep. 140. [Fettyplace vs. Dutch, 13 Pick. 388.- ED.]

119

HOMES & AL. vs. AERY.

BARZILLAI HOMES AND ANOTHER versus JOSHUA AERY

A parol submission to arbitrators, and a performance of their award, is a good bar to an action founded on simple contract.

THIS was an action of assumpsit for the sum of five hundred dollars had and received by the defendant to the use of the plaintiffs

The cause was tried, on a review, at the last November term in this county, before Jackson, J. On the trial, it appeared that the defendant, on the 27th of January, 1810, caused a policy of insurance to be effected on the schooner Trial and cargo, owned by him, at and from Northport, in Penobscot Bay, to Charleston in South Carolina. The policy was underwritten in the office then kept by Mr. Burley, in Boston; and the plaintiffs subscribed the same for $500.

The defendant, when procuring the insurance, represented that the vessel was taking in her cargo at Northport, about the first of said January. It appeared that the vessel had been fully laden, and was ready for sea, with all the crew on board except the captain; and in that situation was blown out of the harbour of Northport in the morning of the 19th of January, in a storm of unusual violence, which extended over a great part of the coast. The captain went in search of his vessel, as soon as the storm abated, and, after several days, found her wrecked on an island in Penobscot Bay, where the vessel and cargo were finally lost. It was not known at Northport that the vessel was found, until about the 29th of January, and on that day the captain wrote to the defendant, who resided in Boston,

informing him of these events. It appeared, that informa[*135] tion of the *vessel's having been blown out of port might have been communicated to the defendant in the usual course of the mail, several days before he effected the policy; and that a man, who left that place on the 23d of January, and who did not travel so fast as the mail stage, arrived in Boston on the 27th of January. There was much evidence on both sides, on the question, whether the policy was, or was not, completed before this man arrived in Boston, and saw the defendant. It appeared that he did see him in half an hour after his arrival in Boston, and then informed him of the vessel's being blown out.

The money was payable, according to the terms of the policy, in sixty days after notice and proof of loss. When it was demanded, the plaintiffs and other underwriters refused to pay, suspecting, from the circumstances of the case, that the defendant must have known of the loss, or the accident which befell the vessel, before effecting this insurance. It was thereupon agreed to refer the dispute to two arbitrators, one chosen by each party

HOMES & AL. vs. AERY.

The ground of defence on the part of the insurers was the same before the arbitrators that it was at the trial, namely, that the defendant, at the time of procuring the insurance, had information of material facts, which he did not communicate to them. They did not produce any of the witnesses that were examined on the trial of this action; but stated to the arbitrators the grounds of their suspicion, that the defendant had conducted unfairly. The arbitrators told them, that they could not award against the defendant on those suspicions alone; but that, if they, the insurers, had any evidence, or expected to produce any, the arbitrators would adjourn, to give them time to produce it. No further time being requested, the arbitrators awarded that the insurers should pay the defendant as for a total loss; and they paid him accordingly on the 19th of April, 1810. Neither the submission nor award was in writing.

[* 136]

The insurers having afterwards been informed of some further circumstances, which occurred at or before the time * of making the insurance (and which were proved at this trial), tending, as they supposed, to maintain their original ground of defence against the claim of the assured, this action was brought to recover back the money so paid by the plaintiffs.

Two questions were argued at the trial. First, whether the insurance was originally void, on account of the concealment by the assured of material facts. And secondly, whether the plaintiffs were not barred and concluded by the award.

On the first point, the judge charged the jury very strongly in favor of the plaintiffs. As to the second point, he instructed the jury, that, if the submission and award were fairly made, and if the defendant did not practise any artifice or fraud in procuring the award, as by preventing the insurers from obtaining any evidence that they might want, or in any other manner, the award was conclusive upon both parties; and that the plaintiffs could not now avoid the award, and try again the controversy, so decided by the arbitrators, upon evidence which they might have produced upon that occasion; and that, if the jury should be of opinion with the defendant on this second question, they should find a verdict for him.

A verdict was returned for the defendant; and the plaintiffs moved for a new trial, on account of the said opinions and directions given to the jury.

Livermore, for the plaintiffs.

Welsh, for the defendant.

PARKER, C. J. This is an attempt to try over again a matter, which has been a long time since tried and determined by a tribunal chosen by the parties, in conformity to their mutual agreement in the policy. The same facts, which are now set up as a ground of action, were then insisted upon as a defence against the claim under the

VOL. XII.

11

121

ADAMS vs. BEAN.

policy. There can be no doubt, if it had been maintained by evidence, the defence would have been successful before the arbitra

[* 137]

tors.

*It appears from the report of the trial, that the underwriters were advertised of their failure of evidence, and tha a opportunity was offered them of a further day, in order that they might procure testimony to prove their defence, which was, unquestionably, good in principle. But they chose to submit to a decision, notwithstanding the warning; and they paid the money agrecably to the award.

If they could now prove that evidence was fraudulently concealed, or that the arbitrators were imposed upon by any false statements of the defendant, the case might be different. But they pretend to do nothing more than to renew their old complaint, without any thing to justify the renewal of a dispute, which was heretofore adjusted in a mode then thought best by both the parties.

This was, at least, a voluntary payment of money by the underwriters, which cannot be recovered back, unless some circumstance of mistake, fraud, or circumvention, is proved, as the actuating cause of the payment. A parol submission to arbitrators, and a performance of their award, is a good bar to an action founded on simple contract. §

Judgment on the verdict.

↑ Bean vs. Farnum, & al., 6 Pick. 269. -Jones vs. Boston Mill Corporation, 6 Pick 148.

Wallis vs. Wallis, 4 Mass. Rep 135. Gates vs. Winslow, 1 Mass. Rep. 65 § Newburyport M. Ins. Co. vs. Oliver & al., 8 Mass. Rep. 482. Richardson vs. Suffolk Ins. Co., 3 Metc. Rep. 573.

ED.]

BENJAMIN ADAMS versus AARON BEAN.

Where a lease was made to two, reserving rent, and one of the lessees with the lessor executed it; a guaranty of the payment of the rent, indorsed on the lease by a third party was held to be binding on the guarantor, although he stated, at the time of signing, that the instrument was not binding without the signature of the other lessee.

The permitting the lessees to occupy the premises demised by such lease, in consideration of such guaranty, was sufficient to raise a consideration for the undertaking of the guarantor.

THIS was assumpsit upon a written promise made and signed by the defendant, upon the back of a lease, by indenture, of a certain shop in Boston, purporting to be made by the plaintiff to Daniel Weeks and Ebenezer O. Fifield, shop-keepers and copartners. The lease was executed by the plaintiff and Weeks only, although written as if

ADAMS US. BEAN.

to be executed by Fifield also. The writing indorsed, which was subscribed by the defendant, was as follows, namely,

"This may certify that I, the subscriber, of Boston, [* 138] &c., do guaranty the faithful performance, on the part of

Daniel Weeks and Ebenezer O. Fifield, of the within agreement, for value received."

At the trial, which was had before the present Chief Justice, November term, 1813, upon the general issue joined, it was proved, that, before the making of the lease, Weeks agreed with the plaintiff to procure the defendant's guaranty for the payment of the rent. When the lease was executed by Weeks and the plaintiff, Fifield was absent from town. Weeks took the lease to the defendant, who at first refused to sign the promise on the back of it, because Fifield's name was wanting. Upon a second application, and being pressed by Weeks, the defendant signed the promise, at the same stating to Weeks that the instrument was not binding without the signature of Fifield, and having first cancelled the words, "for value received." The lease was then delivered to the plaintiff, without any informatior to him of the conversation between Weeks and the defendant. shop was occupied by Weeks & Fifield, in pursuance of the terms of the lease, until the rent accrued, which is demanded in this action, and the just amount was established by the verdict found for the plaintiff.

The

It was also in evidence, that there was a subsisting connexion by marriage between Fifield and the defendant, which was supposed to be the motive of his guaranty; he having frequently, by indorsing. and in other ways, supported the house of Weeks & Fifield.

Several objections were made, at the trial, to the plaintiff's re covering upon this evidence; namely, 1. That the indenture was incomplete and inoperative for want of the signature and seal of Fifield, and that, therefore, the promise predicated upon it was void. 2. That, it being a promise to pay the debt of another, it was void for want of a sufficient consideration expressed in the writing. 3. That, from the conversation which took place between Weeks and the defendant, at the time the promise was signed, it was apparent it was not to be delivered, unless Fifield's [139] name was obtained to the lease; and so that there was no contract between the plaintiff and the defendant.

The two first objections were overruled by the judge; and as to the third, he instructed the jury, that, if they believed, when the promise was signed by the defendant, at the request of Weeks, it was expected and intended that it should be delivered over to the plaintiff, whether the defendant thought it was void or not, it must bind him; and that putting it into the hands of Weeks, without any directions to him not to deliver it, or to inform the plaintiff that the