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V.

J. Woods.

the only writer of authority, that calls this doctrine in ques- NEW-YORK, May, 1804. tion, is professor Woodeson, in his Vinerian Lectures, and he does not cite any judicial decision as the basis of his M. & J. Seixas, opinion. In the case of Chandelor v. Lopus, (Cro. Jac. 4.) it was determined in the exchequer, by all the judges except one, that for selling a jewel, which was affirmed to be a bezoar stone, when it was not, no action lay, unless the defendant knew it was not a bezoar stone, or had warranted it to be one. This appears to me to be a case in point and decisive. And in the case of Parkinson v. Lee, 2 East. 314. it was decided, that a fair merchantable price, did not raise an implied warranty, and that if there was no warranty, and the seller, sell the thing, such as he believes it to be, without fraud, he will not be liable for a latent defect. These decisions are two centuries apart, and the intermediate cases, are to the same effect. Co. Litt. 102. a. Cro. J. 197. 1 Sid. 146. Yelv. 21. 2 L. Raym. 1121. Per Holt. C. J. Doug. 20. Aleyn. 91. cited 2 East. 498, notis. By the civil law, says L. Coke, every man is bound to warrant the thing that he selleth, albeit there be no express warranty; but the common law bindeth him not, unless there be a warranty in deed, or law. So Fitzherbert, (N. B. 94. C.) says, that if a man sell wine that is corrupted, or a horse that is diseased, and there be no warranty, it is at the buyer's peril, and his eyes and his taste ought to be his judges in that case. In the case cited from 2 East. the judges were unanimous, that the rule applied to sales of all kinds of commodities. That without a warranty by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects, and that there is no instance in the English law of a contrary rule being laid down. The civil law, and the law of those countries, which have adopted the civil, as their common law, is more rigorous towards the seller, and make him responsible in every case for a latent defect, (see the Dig. lib. 1. tit. 2. ch. 13. n. 1. which gives the very case of selling vitiated wood) and, if the question was res integra in our law, I confess I should be overcome by the reasoning of the civi lians. And yet the rule of the common law has been well and elegantly vindicated by Fonblanque, as most happily reconciling the claims of convenience, with the duties of good

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V.

J. Woods.

NEW-YORK, faith. It requires the purchaser to apply his attention to
May, 1804.
those particulars, which may be supposed, within the
M. & J. Seixas, reach of his observation and judgment, and the vendor to
communicate, those particulars, and defects, which can-
not be supposed to be immediately within the reach of
such attention. And even against his want of vigi-
lance, the purchaser may provide, by requiring the.
vendor expressly to warrant the article. The mention-
ing the wood, as Brazilletto wood, in the bill of parcels,
and in the advertisement some days previous to the sale,
did not amount to a warranty to the plaintiffs. To make
an affirmation at the time of the sale, a warranty, it must
appear by evidence to he so intended, and not to have
Carth 90, Salk. been a mere matter of judgment and opinion, and of
which the defendant had no particular knowledge. Here
it is admitted, the defendant was equally ignorant with
the plaintiffs, and could have had no such intention.

* Buller J. 3
D. & E. 57

210.

Practice on sti-
pulation.

Practice on fri

The cases in which the ship, in a policy of insurance has been described as neutral or American, and that description held to be a warranty, are not at all analogous to the present case. The policy is a special contract, in which the whole agreement is precisely stated, and no question was ever made in those cases, but that the assured knew, and intended to be understood to mean that the vessel was of the character described. I am therefore

for the defendant.

Lewis C. J. contra.

Anonymous.

THE court intimated that when a stipulation is offered, before notice of motion, then costs will be allowed up to the time of offer. When after notice, and before actual application, up to that time. But when not till the court is applied to, then all costs must be paid.

Anonymous.

IT was ruled by the court, that to take the effect of a movolous demur- tion for judgment, when a frivolous demurrer is put in, notice of bringing on the argument must be given.

rers.

The People against Robert James.

NEW-YORK,

May, 1804.

The People,

v.

R. James.

doned on condi

THE prisoner James had been convicted of forgery and committed to the State-prison. He had been pardoned by the executive, upon condition of leaving the United States Ifaprisonerwho within forty days. Being found in the city of New-York has been parafter the expiration of the time limitted for his departure tion of leaving from this country, he was taken up and committed to the States, within a county-prison. The district attorney obtained a rule against limited time; him, ordering him to shew cause* why he should not be remanded under his former sentence.

The prisoner being

the United

do not de

part, and is af

terwards taken up for not so doing, he may on its appearing to

ed in his intel

brought up, and put to the bar, the record of his former conviction was produced,† and his identity ascertained by the court that his own confession.‡ It appearing, however, that he had he was derangbeen insane part of the time since he had been pardoned, the lects, be diswhole time in ill health, and in very indigent circumstances; charged on condition of departthat he had also been in confinement several weeks for break- ing within the ing the condition of his pardon, the court was pleased to same period from the day of order that he should be discharged, and that he should have discharge. forty days from thence, to comply with the condition of his pardon.||

Theodore Ely, against Richard S. Hallett.

in the King v.

Same practice

PatrickMadan. 1 Leach Ca. 263.

See 1 vol. 72, M'Neil's case,

former convic

UPON a policy of insurance on freight of goods, the the necessity of producing the defendant relied on testimony, shewing that the plaintiff record of a was informed, prior to making the insurance, that a very tion. severe storm had happened at Norfolk, shortly after the Otherwise a sailing of the vessel, which would in all probability en- have been ordanger her safety, and which circumstance he did not dered instantly communicate to the defendant.

venire would

to try the fact.
Ratcliffe's case,
Foster's Cro.
Law, 41.

have informa

Upon this testimony, the jury returned the following verdict: "That the plaintiff was possessed of informa"tion that a violent storm took place at Norfolk, about If the assured "eleven hours after the vessel sailed, and that he did tion of a viclent storm the day "not communicate such information to the defendant. after his vessel "They further find, that there is no evidence to prove, "that such information was in the knowledge of the de"fendant by any other means. But that a communicati

has sailed, and he states only that there has been blowing weather on the

on was generally made to the defendant, before he sign- coast, it is a "ed the policy, that there had been blowing weather, and misrepresenta

H

NEW-YORK, « severe storms on the coast after the vessel had sailed;

May, 1804.

T. Ely,

V.

R. S. Hallett.

tion which will

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"but without any reference to the particular storm first "above mentioned. And they also find, that the danger arising from the storm first above mentioned, did increase the risk." A case stating this finding was made avoid the poli- for the opinion of the court, whether the plaintiff was entitled to recover, if so, then judgment to be entered for him, as for total loss; if not, then for the defendant, either party to be at liberty to put this case into the form of a special verdict.

ey.

Riggs for the plaintiff. The verdict is so imperfect, that at least a new trial ought to be granted. The jury ought to have found particularly the nature and extent of the storm, before they can be warranted in drawing the inference of an increase of risk. It might have been violent at Norfolk, and yet a vessel sailing twelve hours before, might have been perfectly out of the reach of its influence, as it often happens that gales of wind are not felt at a considerable distance from any given spot. They might mean, that. the storm, when compared with good weather increased the risk, but not when compared with the blowing weather which was communicated. An insured is not bound to particularize storms, and recount all that have blown. A general information is enough, because no exact line can be drawn to settle on principle, the degree and period of the storm.

Hamilton and Boyd, contra. The finding is express that the risk was increased, this is enough; for it is a principle in concealments, that the ultimate event arising from it, is immaterial, if the hazard be augmented, because the question is, what effect would the disclosure have had on the underwriter at the time of underwriting, either as to his premium or engaging in the contract. Materiality and immateriality of communications are for the jury, and they have determined the circumstance material. The storm was in the plaintiff's knowledge, his silence therefore vitiates the policy. The verdict is certain to a common intent, and as it is in the nature of a special verdict, the court cannot draw inferences of fact, though they may of law. The requisites asked for in the verdict, as to distance, &c. are impossible; nor is it difficult to draw the line as to communications. Not every storm, but those which enhance the risk, such as the

one now found, are to be disclosed. Seaman v. Fonnereau, 2 Stra. 1183. A concealment of a storm, happening near where a vessel was seen, was held fatal, though she was not lost in it.

Riggs in reply. The rules of pleading do not apply to verdicts; the one in this case is too particular for the general conclusion, and not particular enough for the present finding.

Per curiam delivered by Thompson, J. The underwriter on a policy of insurance enters into the contract and computes the premium in full confidence, that the insured, be ing fully informed of all circumstances relating to the intended voyage, has dealt fairly with him, and has kept back nothing which it might be material for him to know. Every fact and circumstance, therefore, which can possibly influence the mind of the insurer in determining whether he will underwrite the policy, or at what premium, is material to be disclosed, and a concealment thereof, will vitiate the policy. A concealment is to be considered not with reference to the event, but to its effect at the time of making the contract. The question, therefore, must always be, whether under all the circumstances there was, at the time the policy was underwritten, a fair representation or a concealment, either designed and fraudulent; or, though not designed, varying materially the object of the policy and changing the risk understood to be run. If we test the facts found by the jury, by the principles of law above laid down, it will, I think, be found that the concealment was such as to vitiate the policy. The information possessed by the assured, was special and particular, that about eleven hours after the sailing of the vessel, a violent storm took place at Norfolk. The communication made to the underwriter, was very general and vague; that there had been blowing weather and severe storms on the coast after the vessel sailed, but without any reference to the particular storm above mentioned. Unless the assured intended to suppress some information he had relative to this weather, I can see no reason why he did not communicate the information he had actually received. From the general communication given, the underwriter might be induced to calculate that the storm had not reached Norfolk, or that the vessel had been out so long as not to

NEW-YORK,
May, 1804.
T. Ely,

V.

R. S. Hallett.

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