He could, I think, have maintained an action on the case against the defendants for a refusal to deliver the policy, in which he would have recovered damages to the full amount of his loss. But if his remedy at law be questionable, he had a perfect equitable right to the delivery of the usual policy, which he might have enforced in the proper forum. (Perkins v. Washington Insurance Company, 4 Cowen, 645.) Having this equitable right to the policy, he was clearly at liberty to receive it, when voluntarily tendered to him by one who had authority to tender it. It would be a refinement in law, if not in ethics, to hold a man precluded from accepting that which was rightfully his due, because he happened to know that the debtor did not intend to discharge his obligations.

The plaintiff was not told that the authority of Hayner had been, or would be, revoked, until his second call at the defendants' office on the twenty-first of April, and for aught that appears, the policy had then been delivered. But suppose the delivery was after the second call; the plaintiff was not chargeable with notice that the powers of the agent had been revoked, for such was not the fact. The defendants can claim nothing on the ground of having given information that was untrue.

The only notice, then, which could properly be imputed to the plaintiff, was notice that the defendants intended to revoke the powers of the agent. Immediately afterwards, if it did not happen before, Hayner met the plaintiff, in pursuance of the appointment previously made at Troy, and delivered the policy. There was no false suggestions or deceit on the part of the plaintiff; he neither said nor did any thing to induce the delivery. The matter then comes to this: the plaintiff' accepted that which was voluntarily tendered, and was his rightful due, with the knowledge that his debtor did not intend he should have it. That cannot be a good impeachment of his title.

Although the plaintiff could not sue on the receipt for premium, that paper was properly received in evidence as a part of the transaction. The objection to reading the policy in evidence, is disposed of in what has already been said; and so also with the objection that the preliminary proofs showed a loss accruing previous to the execution and delivery of the policy.

There are, I believe, no other exceptions which were not abandoned on the argument.

New trial denied.

IMPORTANT DECISION ON A FIRE POLICY.

THE new Vice Chancellor, Murray Hoffman, Esq., has lately made a decision in the case of Charles McEvers and others v. the Receivers of the Merchants' Fire Insurance Company, which shows how careful parties sustaining loss by fire should be in performing the conditions of their policy.

The premises, in the present case, were destroyed by the great fire in 1835. They were then worth the full amount of a policy which had been effected with a certain insurance company.

Receivers stood ready to pay a dividend of 68 per cent. on the policy, if so decreed. There were, also, other funds for a final dividend, which had not yet been declared.

The pleadings contained certain averments as to the omission to give

notice of the loss; and some proof was taken upon that subject, all of which are particularly stated in the following opinion of the Court.

The Assistant Vice Chancellor.-"Various objections have been made, on the part of the receivers, to the relief prayed by the bill; I have formed so decided an opinion upon the question of the omission to give proper notice of the claim, that I shall not enter into the examination of topics, no conclusion upon which could vary the decree" I must make.

The policy contains the following: "persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company, and, as soon as possible, they shall deliver as particular an account of their loss and damage as the case will admit, signed with their own hands, and they shall accompany the same with their oath or affirmation, declaring the said account to be true and just; the whole cash value of the subject insured; and various other particulars prescribed. A certificate under the hand and seal of a magistrate, is also to be produced, stating his examination of the circumstances attending the fire, etc., and until such proof, declarations, and certificates are produced, the loss shall not be payable."

The pleadings in these cases have distinctly raised the point, whether notice was given or not? The issue was raised by the allegation of the original bill, that it was duly given shortly after the fire; and by the denial, on the information and belief in the answer and the averment, that no such notice was given until after the appointment of receivers, in May, 1836, more than four months subsequent to the fire. The secretary of the company has been examined, and disproves the allegation so far as his information extends. The president, or other officers, who might have received it, as suggested at the bar, have not been examined. It is out of the question to presume notice under such circumstances.

It is, however, said, that the receivers have, by their conduct, impliedly admitted that proper notice was given. This depends mainly upon their letter, addressed to the complainants on the 20th of July, 1836. In that they urge various equities, chiefly that the other securities, held by the New York Insurance Company, should be resorted to, and it is said they do not urge the want of notice as a ground of resisting the claim. They do, however, suggest, whether they are at all answerable, out of the funds of the Merchants' Insurance Company, to pay the claim on the policy, or any part thereof. And they apprize them that they shall resort to all legal and equitable means to contest the claim under the policy. There is no admission of notice in this. Nor is there such in any act or statement of the receivers which has been pointed out. Neither can they be bound by any implied waiver of notice. An express waiver of any legal technical defence to a claim, would be as great a breach of duty as an abandonment of the most equitable one. In the case of the receivers of the Life and Fire Insurance Company, the chancellor treated them as bound to resist the claim of holders of certain securities, called bonds, upon grounds of a legal nature, which, as between the stockholders and the claimants, at least, had but little equity in them(sect. 3, page 224.) Under these circumstances, the Court must proceed to the question, whether the neglect to give the notice, until more than four months after the loss, is fatal to the claim.

It is urged, that the omission may be waived, as well as the omission to give full preliminary proofs of loss; and that such waiver may be im

plied, from no objection being made on that account, and the refusal placed upon other grounds. The case of Vos v. Robinson, (9 John. Rep. 195,) as to a marine policy, and of Dawes v. the N. R. Insurance Company, (7 Cowen, 462,) upon a fire policy, have been cited to this point. The former, as well as other cases, establish, that a defect in preliminary proofs may be waived. But the waiver must be made by a competent authority. In the latter case it was held, that the president of the Fire Insurance Company was not authorized by the charter to waive the full preliminary proofs; although it was admitted that, had they been dispensed with by a board of directors, or a committee authorized to settle the claim, the company would have been bound. But the president had no more power to dispense with the terms of the contract than any other stockholders.

It would be difficult to sustain the proposition, that the receivers could dispense with what the contract requires. It is, however, certain, that in this case they have not dispensed with it. The important case of Inman v. the Washington Insurance Company, (12 Wendell, 455,) has been cited and commented upon to sustain this defence. It appears to me to establish, beyond controversy, that no action could be sustained at law. What right has a court of equity to declare a different rule? I cannot find any equity arising from accident or any other cause on the part of the complainants, much less from the fraud of the defendants, which affords such equity. The original bill cannot be sustained.

Then the question is, whether the relief asked by the cross bill can be given?

If the case rested between the Merchants' Insurance Company and the New York Insurance Company alone, I should have no difficulty. The law of the court, whatever doubt may have before existed, is now certain. No instrument, deemed to be void by a court of equity, and which it will not enforce or make the ground of a decree asserting a right, ought to remain in existence, provided the pleading enable the courts to annul it. The doctrine is fully stated by Justice Story. (2 Story's Equity, 10. 700; see also, Goddard v. Garret, 2 Eq. Ab. 371, pl. 2; French v. Conelly, 2 Anst. 454; Hamilton v. Cummings, 1 Johns. C. R. 320.)

My doubt arises, first, from the injury that may result to other and innocent parties from the neglect of the company. But I am bound to consider that the company was the agent to assert their rights as well as its own, and that all the other parties had a right to supervise their conduct, and to see that their duty was performed. At least they must, although unfortunately, abide by the company's neglect; and the omis sion of proper notice is a defence against all, wheresoever the fault may lie.

But, next: I consider that, before the court can decree the cancelment of an instrument, it must see clearly that no person but those before it can sustain the claim under it; otherwise, the remedy should be a perpetual injunction against the parties to the suit.

I do not see that any person, except Elliott, Lamb, the company, or Raymond and his assignee, can possibly have any interest in the question.

The original bill must be dismissed, and a decree be made under the

cross bill for delivery up of the policy of insurance. Under the peculiar circumstances of the case, I think each party should bear his own

costs.

INSURANCE-GENERAL AVERAGE-TECHNICAL TOTAL LOSS-PARTIAL LOSS -ABANDONMENT-SALE oF VESSEL BY THE MASTER-VALUATIONMARINE INTEREST.

THE case of James L. P. Orrok and others v. Commonwealth Insurance Company, recently decided by the Supreme Judicial Court of Massachusetts, was an action on a policy of insurance on the brig Rolla. The plaintiffs claimed for a total loss. The defendants admitted themselves to be liable for a partial loss, but not for a total loss.

It appeared that the insurance was on time; that the Rolla, on the 9th of February, 1835, during the time covered by the policy, struck upon a rock in the Mediterranean Sea, while pursuing a voyage from Barcelona to Vera Cruz, intending to touch at Gibraltar for provisions; that on the next day after getting off the rock, she was compelled, by the injury she had received, to put into Roquetas, where the captain procured eight men to go on board and assist in pumping; that on the following morning she was driven to sea by the violence of the wind, but succeeded in reaching Malaga on the 15th of February; that, at Malaga, by the advice of the American consul, a survey was called, and the surveyors reported, that it was necessary that the vessel should be unloaded, in order to examine her; that this having been done, another survey was called, and a report made by the surveyors in writing, which concluded by recommending that the vessel should be sold; and that the captain afterwards, by the advice of the consul, and in pursuance of such report, sold her by auction.

It farther appeared, that the cargo consisted of wines, and other articles which were not of a perishable nature; and that the vessel was repaired in about ten days so as to be enabled to make a voyage across the Atlantic.

The plaintiffs abandoned the vessel on the 5th of August, 1835; and there was evidence that the captain arrived in Boston on the 10th of the preceding July.

The defendants introduced, as a witness, John S. Tyler, an insurance broker in Boston, who testified, that, according to the usual manner of adjusting losses in Boston, the expense of the eight men from Roquetas, and that of the first survey while the cargo was on board, would be charged as general average; that the expense of the second survey, if on the vessel after the cargo was out, would be a partial loss; that the cost of the carpenters' work and labor, and all the expenses necessary in order to make the surveys, would follow the surveys respectively, and be general average or partial loss, as the principle to which they were incident was the one or the other; that the expenses of lighterage, boat hire, hire of the vessel in which the cargo was put, and all the expenses respecting the cargo, would be general average; that wages, and the cost of provisions, from the time of bearing away for a port of necessity, etc., if the vessel had been repaired, during such repairs, and until she was again upon her voyage, would also be general average; and that if, in order to make the repairs, money was raised on bottomry, one

third was deducted from the marine interest paid, and two thirds only charged to the underwriters.

At the trial, the counsel for the plaintiffs, upon the cross-examination of Samuel F. Holbrook, a shipwright, who was introduced as a witness by the defendants, proposed the following question: "As this vessel and the injury to her have been described, would she, after being repaired, be of less value than before the injury happened?"

This question was objected to by the defendants; and the judge ruled that it could not be proposed.

The plaintiffs contended, that if the master could not have made complete repairs at Malaga, for less than one half of the value of the vessel, but could have made partial repairs at Malaga and then carried his vessel to Gibraltar, and there made complete repairs, at an expense in the whole not exceeding one half of such value, he was not bound to have made partial repairs at Malaga, and then have gone to Gibraltar for complete repairs; but the judge was of a different opinion, and instructed the jury accordingly.

The plaintiffs contended, that the valuation in the policy was not conclusive, and that they had a right to show, that the vessel was of less value, and especially that she was of less value at Malaga, the port of necessity; but the judge instructed the jury otherwise, and ruled, that the valuation in the policy was conclusive.

The plaintiffs farther contended, that if the valuation in the policy was conclusive, still the premium should be excluded, in determining whether the insured were authorized to abandon; and that as the valuation in the present case was eight thousand dollars, including the premium of seven per cent., an excess of one half of seven thousand four hundred and forty dollars, would authorize an abandonment; but the judge ruled otherwise, and instructed the jury, that the insured were not authorized to abandon, unless the expense exceeded one half of eight thousand dollars.

The plaintiffs contended, that in determining whether the expense of repairs authorized an abandonment, the whole of the marine interest necessary to be paid was to be included; but the judge ruled otherwise, and instructed the jury, that only two thirds of the marine interest were to be included, that is, that the deduction of one third new for old was to be made from the whole cost (including the marine interest) of the items subject to such deduction.

Several other points were made by the plaintiffs, at the trial, which were overruled by the judge, and a verdict was rendered for a partial loss only.

The case was argued before the full court on a motion by the plaintiffs for a new trial, and the court decided that the verdict of the jury was right. They made the following, among other, points:

1. That on the question whether the cost of repairs would exceed half the value of the vessel, evidence tending to show that she would have been of less value after being repaired than she was before the injury, was inadmissible.

2. If the injury sustained by a vessel insured is not of such a nature and extent as to warrant an abandonment, it is not such a case of necessity as will warrant a sale by the master.

3. In determining whether the expenses in repairing an injury sus