NEW-YORK, verdict, with cofts; the plaintiff having proceeded to trial without vacating the rule for the commiffion. May 1803. Brain V. anr. Per curiam. When a rule for a commiffion has been obRodelicks & tained, it fufpends the caufe till, on application to the court, a vacatur be ordered and entered. But if the defendant appear and examine witneffes, it is a waiver of his commiffion, and the vacatur is unneceffary. The motion muft be refused. When there are cross causes, and Codwife, Ludlow & Co. against John Hacker. THE plaintiffs, in the fittings of June 1802 at New-York, the plaintiff in each has obtain- as owners of a ship of which the defendant was captain, had, ed a verdict, if in action against him for deviating from his orders, obtained a verdict, fubject to the opinion of the court on a cafe to be cafe made by a made; and he, in a crofs fuit, had recovered against them defendant, and material facts be omitted in a the papers from a larger fum, subject to deductions, in cafe the opinion of the whence they court should be against him as to certain items, charged and may be inferted, be in the hands allowed by the jury. of the plaintiff, the court will ment to be en A cafe was made on the part of the defendant to which the not order judg- plaintiff proposed amendments, which were adopted; the tered, becaufe caufe was then noticed for argument for the next October cafes have not term, and also for January term following, in Albany. been delivered, ed, but will fect. But and tho' the cafe it was then recollected, that fome material facts had been has been notic- omitted, without which the cafe could not present the only give leave to a important question in the caufe. This was mentioned to the mend and per- plaintiff's attorney, who would not fay whether he would confent to the amendments or not. The papers from whence they were to be drawn, and the cafe perfected, were in the hands of the plaintiff's attorney in New-York; fo that the cafe could not be completed in Albany. No application was made to a judge to correct the amendments. Nor had cafes been delivered. Hopkins now moved to set aside the original order to stay proceedings that a cafe might be made, and for leave to enter up judgment. Riker refifted the application, because the cafe was imperfect, and the papers from whence only it could be completed, were in the hands of the plaintiff. Per curiam. We must deny the motion; because, in the first place, there were crofs verdicts to nearly the fame amounts. Secondly, the cafes were never perfected, and it NEW-YORK, did not appear to be exclufively the fault of either. Thirdly, May 1803. the plaintiff's attorney not having denied the omiffion of cer- Codwife & ors. tain material facts, the court would prefume they had appeared on the trial, and ought to be a part of the cafe. cafe be perfected within 30 days. V. Hacker. Let the Hopkins prayed costs, infifting he had been regular. Per curiam. We confider that the plaintiff was irregular, in not answering when applied to, whether he would receive amendments or not. N. B. It was faid by the court, that where a defendant, after verdict, makes a cafe and notices for argument, if he does not appear at the time when called, judgment fhall go : but when the plaintiff notices a cafe made on the part of the defendant, and the plaintiff is not ready, it fhall go down. P. Kemble, furvivor of Governeur and Kemble, against Walter Bowne. Tried before Judge Livingston, 9th of April 1802. Practice as to noticing cafes. veffel in a dif fail, and ftated ASSUMPSIT on a policy of insurance, not valued, dated In a policy on a the 3d September 1800, on the fhip Helen, "At and from tant port from Point-Petre, Guadaloupe, to St. Thomas's, beginning the ad- whence the is to venture at and from Guadaloupe and to continue till her ar- to be there on a rival at St. Thomas's, and there fafely moored." At a mium 17 per cent. The declaration contained an averment that the infurance was made for Charles Gobert. pre The defendant received no information from the broker, except that the fhip was at Guadaloupe the 28th of July. The Helen was a prize fhip, and purchased for Charles Gobert, 20th November 1799, at Point-Petre, for 6450 dollars and 48 cents, including commiffions on the purchase. A prior infurance had been made on the fame veffel and voyage at St. Thomas's, for 640 dollars, at a premium of 30 per cent. (Gobert being there) which after paying commiffions and premium, left 4349 dollars and 35 cents received by Gobert, which it was agreed was to be confidered as a prior infurance. The amount infured on the policy was 7500 dollars, and for that fum the prefent action was instituted. and from" mean certain day," at the day on which fhe is mentioned to be there, and the effect from thence. It is not neceffary to long a veffel has disclose how lain in port antecedent to the policy. The two per cent delofs is, in cafe of difafter, a part of ducted on a total the premium. NEW-YORK, P. Kemble V. W. Bowne. It appeared from the teftimony of the captain who took charge of the Helen on the 20th Nov. 1799, and continued to command her till the 6th February 1800, that in that time he expended in repairing and other neceffaries, 1335 dollars and 86 cents, including an item for wages in taking care of the fhip, to a period after he refigned the command; his knowledge of the payment he faid was derived from the information of the perfons employed in that duty that the Helen was American built, copper bottomed, and would have been worth in New-York, with an American register, 25,000 dollars; during the time he remained on board there were occafionally fugars and cotton put on board her, and taken out again to load other veffels at that place, belonging to Mr. Gobert. From the evidence of the fucceffor of the first captain it appeared, that, being at Guadaloupe in July 1800, he received orders from Gobert's agent at St. Thomas's, to take poffeffion of the Helen, man, victual her, and fend her to him there. That according to an account of one Brocha, Gobert's agent, "the purchase money, unrigging and tarring, fafe "mooring and guarding the fhip, while at Guadaloupe, "amounted to 7000 dollars. The witness paid Brocha 3000 "dollars, part of the purchase money, and Brocha told him "Gobert paid him 4000 dollars." Some expenditures were made upon the ship before the witnefs took poffeffion of her as before stated, to the amount of which he could not say. But the bill of disbursements for the fhip, paid by him for repairs and neceffaries to get her difpatched on the voyage from Point-Petre to St. Thomas's, came to 4461 dollars and 87 cents, amounting in the whole to 7461 dollars and 87 cents. The fhip failed from St. Thomas's fome time in September the witness was a paffenger; on the voyage she was captured, carried into Antigua and condemned as prize; a claim had been interpofed, in the profecution of which, £317:11:8 was expended, of which the proportion to be paid by the fhip was admitted to be about 500 dollars. The witnefs received poffeffion in July. That the repairs and cut fits and the expences thereof done to her afterwards were particularly enumerated in the accounts rendered. Mr. Ferrers, an established Infurance Broker, faid it was ufual in eftimating the value of the fhip to allow wages ad May 1803. P. Kemble V. W. Bowne. vanced to the captain and crew: commonly a month's pay NEW-YORK, as part of the outfit of a veffel, also provisions for the voyage, and all other charges for things requifite and proper to prepare her for the voyage infured. That no expenditures whatever previous to the commencement of the voyage are charges against the infurers on freight. That fome of the items in the accounts, in his opinion and according to his practice, required vouchers, or it could not be known whether they were proper or not. That in fettling loffes in fuch cafes, vouchers were required by him. It was admitted that nine livres make one dollar. The Judge expreffed to the jury, as the inclination of his opinion, that the policy could not be confidered as attaching from the first purchase of the ship by Gobert at Guadaloupe, but from the time fome act was done towards equipping for the voyage. Whether however this was the cafe or not, and even to suppose it to have attached at the time of such first purchase, that it was not neceffary to difclofe to the underwriters the length of time the veffel had remained at Guadaloupe, nor that she had been used as a store-fhip at that place. He was of opinion that the account of the first witnefs ought to be laid out of the question; yet however, independently of that, there appeared to be intereft to the amount insured in this policy, beyond the prior insurance. The jury found for the plaintiff, a total lofs, without going from the bar or examining the accounts. The application was to fet afide the verdict as being contrary to law and evidence. Pendleton for the defendant, made two points: Tirst, that the policy was void for concealment; fecondly, that, allowing it to be otherwise, the verdict could not ftand, being against evidence in finding a total lofs when only a partial injury had been fuftained. On the first point he obferved, that a contract must be taken as it is worded, where there is no ambiguity, or it is no contract at all. In policies of affurance" at and from" a place, means first arrival at that place. Park 38, ther and the cafe cited by Lord Hardwicke in Motteux v. London Aff. Com. 1 Atk. 48. It is true that the conftruction is not univerfally the fame. In France it is interpreted to be from. the time of failing. 2 Emer. 14. But in England it is regulated by fpecial contract. 1 Marsh 173. Bird v. Appleton, I * v. NEW-YORK, Marsh 60. That at and from" mean from the first arrival, May 1803. is obvious from the words themselves, and the two firft cited If not fo, when did the risk commence? P. Kemble v. W. Bowne. : The At authorities. fo that the whole cannot be due. Hamilton contra. 7500 dollars 5683 In this cafe the fituation and circumftances of the veffel antecedent to the orders for insurance were perfectly immaterial, and therefore needed not to have been disclosed. The only effect which the Helen's stay at Guadaloupe could have had, would have been to render her less fit for the voyage infured. That she was completely adequate to its performance, was a warranty implied in this as in every other policy. It is a fettled principle, that whatever is warranted against, whether it be in exprefs terms or by implication need not be disclosed, and the reafon is obvious, because it is |