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British spoliations lost no small part of his property. The treaty made by Jay returned him his property, and the fair interest on the same. He now relinquished all business, took his money and invested it in American stocks, and lived on its income,-most ample means for his purpose. His table was one of the best in the country. He was classical, delicate in his feelings, and unshaken in his opinions, and every one was satisfied with his hospitable board. His conversation was generally directed to ancient history, or to that of our country. He was at home in either, but made no parade of his learning. He was a man of no ordinary talents, and of more than ordinary taste in classical literature. As an antiquary he was second to none; he garnered up all that was curious or strange in his neighborhood, and was ready to give it to the public provided his name could be kept out of sight.

He now placed the enjoyments of life in ease, and never swerved from his principles. He was blessed with an excellent wife and a delightful family. They were around him and administered to his comforts. He had three sons and two daughters, and all were devoted to his happiness. He rejoiced in the success of all he knew: his heart was full of philanthropy.

His person was noble, his height over six feet, his countenance quiet, calm, but manly, and hardly bore the ordinary marks of age. In the 81st year of his age he sunk to sleep, without having suffered many of those pains and aches which mortal man is liable to, in this scene of struggle and anguish.

There were but few men in this world of so good a disposition, fewer still of so much intelligence or refinement, and none of greater purity of character.

ART. VII.-LAWS RELATIVE TO DEBTOR AND CREDITOR

NUMBER TWO.

MISSOURI.

The following brief abstract of the laws of Missouri, relative to the means of enforcing debts against the citizens of that state, prepared by Messrs. Primm & Drake, attorneys at law, at St. Louis, Missouri, has been politely furnished for publication in our magazine, by Joseph C. Hart, Esq. of New York. We also subjoin a complete and accurate statement of the times of holding courts in Missouri.

The points to which we shall advert, relate :

FIRST-TO suits on bonds, bills, and notes.

SECOND TO Suits by capias.

THIRD-TO suits by attachment.

FOURTH-To proving indorsements and partnerships.

I. Suits on bonds, bills, and notes.

These, by a recent law, are made triable at the term of court to which suit is brought, if the defendant shall have been personally served with pro

cess, twenty days before the commencement of the term. This change will enable a creditor to obtain his money; before, under the former law, he could have had a judgment.

II. Suits by capias.

A capias may be obtained against a debtor upon the plaintiff, or some person for him, making an affidavit,* stating that the plaintiff has a subsisting and unsatisfied cause of action against the defendant, on what account the same accrued, and that the defendant is about to remove out of this state or that the defendant is not a resident of this state-or that the plaintiff is or will be in danger of losing his demand unless a capias be allowed, and the defendant held to bail.

If the plaintiff's demand be liquidated, the amount due must be specified in the affidavit; and when the affidavit shall state that the plaintiff is or will be in danger, &c., the facts and circumstances, from which such danger is inferred, must be stated in the affidavit.

III. Suits by attachment.

An attachment may be obtained, upon filing a bond, as subsequently stated, and an affidavit, setting forth that the defendant is justly indebted to the plaintiff, after allowing all just credits and set-offs, in a specified sum, and on what account, and that the affiant has good reason to believe, and does believe, either

1st, That the debtor is not a resident of, nor residing in the state of Missouri; or,

2d, That he conceals himself, or absents himself, or has absconded from

his usual place of abode, in the state of Missouri, so that the ordinary process of law cannot be served upon him; or, 3d, That he is about to remove his property or effects out of this state, so as to defraud, hinder, or delay his creditors; or,

4th, That he has fraudulently conveyed, assigned, removed, concealed, or disposed of; or is about to convey, assign, or dispose of, any of his property or effects, so as to defraud, hinder, or delay his creditors; or,

5th, Where the debt was contracted out of this state, and he has absconded, or secretly removed his property or effects to this state, with intent to defraud, defeat, hinder, or delay his creditors. In addition to the affidavit, a bond, in the following form, must be filed at the commencement of the suit:

"Know all men by these presents, that we,

as principal, and

-as security, are bound to the state of Missouri, in the sum of 'dollars, for the payment of which we bind ourselves and our legal representatives by these presents. Sealed with our seals, and dated this day of -,18-.

"The condition of this obligation is such, that whereas as plaintiff is about to institute a suit by attachment, in the Circuit Court, against -as defendant, returnable to the -Term, 18-,of said court, for the sum of- -dollars; now if the said plaintiff shall prosecute his action without delay and with effect, and shall pay all damages which may accrue to the defendant or any garnishee by reason of said

* Any affidavit, taken to be used in this state, should be sworn to before a judge of a court of record, and the clerk of such court should certify, under the seal thereof, the official character of the judge.

ART. VIII.—MERCANTILE LAW REPORTS.

FIRE INSURANCE-EXTENT OF THE POWERS OF INSURANCE AGENTS TO BIND THEIR PRINCIPALS.-IMPORTANT DECISION ON A FIRE POLICY.—INSURANCE-GENERAL AVERAGE-TECHNICAL TOTAL LOSS-PARTIAL LOSS -ABANDONMENT-SALE OF VESSEL BY THE MASTER-VALUATIONMARINE INTEREST.

FIRE INSURANCE-EXTENT OF THE POWERS OF INSURANCE AGENTS TO BIND THEIR PRINCIPALS.

THE following interesting case in the Supreme Court of New York, of fire insurance, involves the question of the extent of the powers of agents to bind their principals, and as a large proportion of the insurances in the country are effected through agents, we publish a full report of Judge Bronson's opinion.

Samuel Lightbody v. North American Fire Insurance Company.

This was an action brought to recover two thousand dollars on a policy of insurance, issued by the agent of the North American Insurance Company, residing in the city of Troy. The facts, as offered in evidence, were these: The plaintiff resides in the city of Utica, and was the owner of a block of wooden buildings, which he wished to get insured, and sent a survey of the property to a friend, residing in the city of Troy, requesting him to get it insured in some responsible company in Troy or Albany, authorizing him to pay one half per cent. premium. The person to whom the survey was sent called on H. Z. Hayner, Esq., agent of the North American Fire Insurance Company, and inquired if he was authorized to take risks in the city of Utica; being answered in the affirmative, he presented him the survey, and asked at what rate he would insure that property. Mr. Hayner requested that he would leave the survey with him for a few days, that he might examine it before agreeing upon the premium. In about a week's time he called again, and they agreed upon the premium, at one half per cent., which was paid at the time, and a receipt taken for the same.

That same night, March 30th, 1837, those buildings, with many others, were destroyed by fire. Subsequently to this, the agent gave the insured a policy of insurance, according to agreement, signed by the president and secretary of the company, and containing the incorporate seal.

There were two points of defence set up by the defendant's counsel; one was, that the policy was of no validity, having been delivered after the buildings had been destroyed; therefore it could not obligate the company to pay for what did not exist when it came into the possession of the plaintiff.

The other point of defence set up, was, that their agent was restricted by the company to insure only in Troy and its vicinity; and, therefore, by insuring in Utica he had transcended his authority, and consequently could not bind the company by his acts. In answer to which, it was urged by the plaintiff's counsel, that the delivery of the policy after the fire was no new contract, but that it was in accordance with the general custom to take a receipt on effecting an insurance, and afterwards receive the policy of the company.

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In answer to the other objection, it was contended, that the plaintiff was not bound to inquire what instructions the agent might have received from the company to regulate his conduct; that it was enough for his pose to know that he was their authorized and accredited agent, for the general purposes of insurance, and that if he transcended his instructions he was amenable to the company; and that an individual, who had not the means of knowing what those instructions were, ought not to suffer on this account.

The Court ruled, that the objections could not be sustained, and directed the jury to find for the plaintiff the full amount claimed.

Exceptions were taken by the defendant's counsel, and the case having been carried to the Supreme Court, the following is the opinion of the Bench, decided at the late term in Albany.

By the Court, Bronson, Judge. Without intending to intimate any opinion on a question which may be made between the principals and their agent, I shall presume, for all the purposes of this case, that the agent departed from his instructions in taking a risk at Utica. This hypothesis will not aid the defendants. Hayner was a general agent for effecting insurance on behalf of the company, and acted within the general scope of his authority in taking this risk. Although he must answer to his principals for departing from their private instructions, he clearly bound them, so far as third persons, dealing with him in good faith, are concerned. The question is not so much what authority the agent had in point of fact, as it is what powers third persons had a right to suppose he possessed, judging from his acts and the acts of his principals. Perkins v. Washington Insurance Company, (4 Cowen, 645.) This rule is necessary to prevent fraud, and encourage confidence in dealing, (2 Kent, 620.) It is difficult to conceive how the defendants could have conferred a more unlimited authority upon the agent, so far as third persons are concerned, than they did by furnishing him with policies already executed by the officers of the company, and ready to be delivered to any one who might wish to contract, after his name, the subject insured, extent of the risk, and date of the transaction, had been inserted in the contract. The plaintiff had a right to believe that the defendants reposed unlimited confidence in Hayner in relation to the subject of his agency; and it would be a monstrous doctrine, to hold that they may now discharge themselves by setting up their private instructions, which were wholly unknown to the plaintiff when he entered into the contract. The rule is different in relation to a special agent: he cannot bind his principals beyond the precise limit of his authority. But Hayner was a general agent, acting within the scope of his powers; and if he was wrong in taking this risk, that is a question to be settled between him and his principals.

The objection that this was a special risk, and that Hayner had no authority to take special risks without consulting the company, depends on the same principle as the objection already noticed, and requires no separate consideration. There is no ground for imputing bad faith to the plaintiff, or to his agent, Knowlson, who negotiated the contract with Hayner. So far as appears, the plaintiff did not know that the defendants had an agent in Utica; and if he had known that fact, he did not instruct his agent at Troy to insure with the defendants; Knowlson called on Hayner, because he saw from the sign on his door, that he was an

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agent for making insurance. He asked Hayner if he had authority to take risks in Utica, and the agent answered, he thought he had. There was nothing in this calculated to excite a doubt concerning the extent of the agent's powers; and besides, the counsel did not suggest on the trial, as they did on the argument, that there was enough to put Knowlson on inquiry; it is too late now to raise that question, if there was ever any ground for making it.

The offer to prove that risks in plaintiff's block were very hazardous, was of no manner of consequence, so long as there was no pretence that plaintiff had either misrepresented the true character of the risks, or omitted any thing which should have been stated in the survey on which the defendants acted, nor was it a matter of any moment that the defendants' agent at Utica had refused to take risks in that block, and would have refused this risk had it been offered to them; that fact could prove nothing against the plaintiff'; and had the plaintiff known that R. & S., the agents at Utica, had refused to insure other buildings in the same block, which is more than the defendants offered to prove, that would not alter the case. Because other persons could not obtain insurance, it did not follow that the plaintiff could not; and if the plaintiff himself had been refused by one agent or company, it did not preclude him from applying to another. If he was chargeable with no concealment or misrepresentation affecting the contract which was made, it cannot be avoided on the ground that one, or even a dozen, other persons have refused to make a similar contract with him.

The defendants did not avow on the trial that they intended to impute fraud to the plaintiff, but if they had done so, the several offers of evidence did not go far enough to raise such a question.

If the policy was well delivered, it took effect by relation from the day of its date, which was the day on which the premium was paid and the contract concluded. (Jackson v. Ramsay, 3 Cowen, 75, and cases cited.) It was the manifest intent of the parties, that the contract should separate from the day of its date, so as to give the plaintiff the same legal remedy which he would have had if the policy had in fact been delivered on that day, and the law will give effect to that intention.

This doctrine was not directly denied on the argument, but it was said that the policy was not duly delivered on the twenty-first of April, for the double reason that the power of the agent was then at an end, and the plaintiff had notice that the defendants refused to ratify or be bound by his act in making the contract. Although the defendants told the plaintiff on the twenty-first of April that the authority of Hayner had been revoked, the letter of revocation was not even written until the next day, and it was not received by Hayner until the twenty-third of April; so far as the agent was concerned, he not only pursued his authority in delivering the policy, but he acted in perfect good faith towards his principals, for he had no notice that they intended to put an end to his agency. The delivery was well made, and bound the defendants, unless there was something in the circumstances of the case which should have precluded the plaintiff from receiving the policy when it was offered to him.

How does the question stand in relation to the plaintiff? He had, as we have already seen, made a valid contract with the defendants, and was entitled to the usual evidence of that contract, a policy of insurance.

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