Lawrence and Clarkson. ALBANY, tified in instituting a suit for damages, and there the suit August 1803. could not have been for restitution, but in terminis for Whitney damages. As to the formal objection made by the deVan Horne and fendants, that the action was not maintainable, the insur ance being general, and the suit for only one third. What ever weight might be in the objection itself, though that it possessed any is not very evident, it, at all events, comes too late. The present is an application for a new trial, and therefore the objection not to be attended to now. Does the judge below decide on rules of practice? This objection does not touch the merits, but is merely a question of practice: the defendant, therefore, to avail him self of it, should shew that he has suffered an injury by it. Hamilton in reply. It is of importance that the latitude taken by the assured in charging underwriters, through the general agency given by the clause, under which the present hopes are founded, should be in some degree con fined. The plaintiffs never asked whether they should proceed or not, but continued for two years defending, without any personal authority. The increase of expen ces was more than the whole value insured. However principles might warrant such a case, it ought not to con clude them. The question was, whether the parties had proceeded without authority. With regard to the interest insured, it deserved the interpretation of the court. Policies no doubt have a certain degree of latitude: they may cover various interests; such as are equitable, and even those which are undisclosed. This was an ar gument for an insurance of a part, and it must be allow ed; but then it ought not to cover the whole, when there is a joint interest. When it does so, the whole must be intended to be insured by a party insuring generally, and not that it is for his separate interest. What that interest is, he should specify; the contrary leads to fraud; because, if the vessel arrive safe, a return of premium might be demanded. Several policies might be affected by the se veral proprietors, each for the whole, and unless discovered, the subject of insurance might be paid for ten times ever. But nothing can justify the plaintiffs' pursuing Lawrence and V. VanHorne and the conduct they adopted at the defendants' expence. ALBANY, August 1803. Whether the power to charge the underwriter at all, under the clause of the policy now insisted on, did not terminate the instant he had notice of the disaster, is, perhaps, the true point in question. The authority was, immediately Clarkson. on notice, perfectly at an end. The right to charge the assurer, previous to notice, would exist without any clause; there would, and must be, an implied agency. The super cargo, or captain, would, from his situation, be constituted the agent of the parties concerned. The interests of all give him a right, according to foreign authors, to act from necessity. The clause was merely to affirm that principle inherent in the nature of the circumstances, and flowing from them; to remove a doubt which hung over the case of abandonment, whether the acts of the agents of the assured, should not be construed a waiver of the abandonment that had been made. This implied agency could not, in strictness, continue after the abandonment. If an election to abandon be made, the right to act for the underwriter will be destroyed; if it be not made, the assured, as owner, must act for himself. After abandonment, reason appoints the assurer to act over his own property and interest. If a part be uncovered, then the assured may pursue for that, but not so as to charge the underwriter. It was not intended to say, that the acts of the master, if left to himself, would not bind the underwriter. For he would continue, or become the agent of him, in whom, after abandonment, the property vested. The orders given by the assured in this case, are like those in cases of two routes in the iter: a direction to pursue one, by destroying the captain's right of discretion, creates a deviation. No argument can be raised against the defendants, from the circumstance of their. not objecting to the intermeddling of the plaintiffs: there. was a joint interest, and therefore the unassured might act for the preservation of their own, and, in such a case, could the silence of the underwriter be construed into an acquiescence? for, a mere silence of this sort, could never create an authority to charge. With respect to the decision PP August 1803. ALBANY, of the judge at nisi prius on the point of evidence, he relied on the case from 1 Espinasse, 209. Lawrence and V. Per curiam, delivered by Radcliff, J. Several questions have been made, which may be considered in the followClarkson. ing order: Van Horne and 1st. Whether the insurance, which was general, can apply exclusively to the interest of the plaintiffs, that being an undivided third part of the cargo? 2d. Whether the defendants are at all liable for the expences which accrued subsequent to the acquittal, and in prosecuting the appeal for damages? 3d. Whether the defendants were not entitled to inspect the letter called for by them, and to elect whether it should be read in evidence? 4th. Whether the expences in prosecuting the appeal at Cuba, were reasonable and ought to be allowed? As to the first, I consider it well established in practice, that the assured is not required to state the particular interest, or proportion of interest, which he intends to have insured. It is sufficient if he have an insurable interest to the amount in question. Whether it be a distinct, or an undivided share, cannot be material. It may often be difficult to ascertain his interest with certainty. The owners were at least equitably entitled to their shares in seve ralty; the interest of each, I therefore think, ought to be permitted to be severally enforced. In the present case, it appears that the insurance was in fact so intended, and a witness, who was one of the partners, testified that the plaintiffs had no authority to insure except on their own account. The danger of fraud from this practice, I think is remote, and less to be apprehended than the inconveniences which may arise from a contrary rule. 2d. As to the second objection, I see no reason why the defendants should not be liable for the expences attending the prosecution of the appeal in Cuba, which was conducted with good faith and for their benefit. I am informed that it was decided by this court, in April 1795, in the case of Smith v. Scott, that an assurer is liable for similar expences, beyond the amount of his subscription; ALBANY, August 1803. Lawrence and V. Van Horne and and I believe that the underwriters have, in practice, uniformly acknowledged their liability. The appeal in the present case, I think was justifiable. The captain was condemned in costs amounting to about $1500, one third of his cargo was plundered, and the vessel stripped of Clarkson, every thing necessary to her equipment. The restoration of the vessel and cargo in that condition, was little better than a total loss. There is no direct evidence that the defendants afterwards had notice of the proceedings, but I think it may be fairly presumed. The capture was well known to them; an abandonment was made, and the proceedings were frequently a subject of conversation between other underwriters on the same policy. The defendants did business in the same Coffee-house with those underwriters, and though in a different room, it is proved that it is usual for underwriters on the same risk to communicate to each other the information they receive. From these circumstances, I think actual notice to the defendants may be presumed, if then they had notice, and did not signify their dissent, they ought clearly to be held liable to the result. 3d. As to the third point, I see no reason to change the opinion I entertained at the trial. A party who gives notice to produce a paper in evidence, must be supposed to know its contents. If he does not, he ought not to be permitted to speculate through the forms of law, and ob. tain from his adversary the inspection of any paper or document he may chuse to demand. Such a privilege would be liable to abuse, and I think neither correct in principle, nor consistent with the form of proceeding in such cases. The notice to produce a paper, requires it to be produced in evidence, and when once called for and produced, it is of course in evidence, and I think it cannot be called for on any other terms. I understand this to have been the practice of our own courts, and no question has arisen upon it to my knowledge, until a late decision of Lord Kenyon at nisi prius, which suggested the idea now maintained by the defendants counsel. It may be questioned 210. Sayre v. Kitch❤ whether the point decided in that case, is similar to the in. 1 Esp. Ca. p August 1803. Whitney v. Clarkson. ALBANY, present. Without examining this, it was an opinion at nisi prius, and of itself no authority; and in addition to Lawrence and what has been said, I think the alternative that the party Van Horne and giving the notice, if the paper be not produced, may go into evidence of its contents, shews, not only that he must be supposed to be apprized of them, but that he cannot have it in his power to compel a previous inspection. If the paper be refused or withheld, he can do no more than give inferior evidence respecting it. Neither the court, nor the party can enforce its production for the purpose of inspection or any other purpose. 4th. Whether the expenditures in prosecuting the appeal in the island of Cuba were reasonable and proper, under the circumstances of the captors' situation there, was distinctly submitted to the jury, and if extravagant or improper, they were directed to make such deductions as in their opinion should appear reasonable. They have, in fact, made a considerable deduction, and I cannot say that they have not done right, or ought to have deducted more. I am therefore of opinion on all the points, that the plaintiffs are entitled to recover according to the verdict as it stands. Thompson, J. I concur in the opinion given, except as to the third point. I am inclined to think the defendants were entitled to an inspection of the letter they had given notice to produce, without stipulating that they would af terwards read it in evidence. The practice of giving notice to produce papers, as in the present case, has been introduced to save the expence of going into chancery for a discovery, and I can see no good reason why the party ought not to be entitled to all the advantages he would have, had he resorted to his bill in equity. In that case, *after a discovery, he might exercise his discretion whether to use it as evidence or not. I do not think this right of inspection would be liable to the abuses suggested by the plaintiffs' counsel, that it might lead to an impertinent inspection of papers having no relevancy to the controversy. The party calling for the paper, must appear in the first instance, to have an interest in, and right to it; he must give |