Mar. Ins. Co. of Alexandria

V.

Wilson.

*191

We pleaded that she was unsound on the 24th of October, when the voyage commenced; and we pray. ed the court to instruct the jury, that if they should be satisfied by the evidence that she was condemned *as being unsound and rotten on the 24th of October, after a regular survey, they ought to find a verdict for the defendants. This instruction, we contend, the court ought to have given; for the report of the surveyors is like an award of arbitrators, which cannot be set aside, unless partiality, fraud, or misbehaviour, be proved on the part of the arbitrators. In the case of Shelton v. Barbour, 2 Wash. 64. it was held that a former verdict and judgment between the mother of the plaintiff, who sued for his freedom, and the defendant, by which it was adjudged that the mother was a slave, were conclusive evidence that the plaintiff, her son, was a slave. And this was in a question where freedom was concerned, and where the natural leaning of the court is presumed to be in favour of freedom.

The judgment of a court is to be admitted as conclusive evidence, without being specially pleaded. So is an award, and the judgment of a foreign court which has jurisdiction over the subject matter and the par

ties.

2d. If the report of the surveyors does not refer to the 24th of October, as the time when the vessel was unsound, it was competent for us to explain the report by testimony not inconsistent with it. There is, however, enough in the report to induce a presumption that she was not sound on the 24th. The unsoundness was in the hull, not in the rigging, masts, &c.

To show that parol testimony might be admitted to explain any ambiguity of the report, the following cases were cited: 1 T. R. 701. Doe, dem. Freeland, v. Burt. 1 Dall. 193. Gregory v. Setter. 2 Dall. 171. Field v. Briddle. 2 Dall. 173. M'Minn v. Owen. 1 Wash. 15. Ross v. Norvell.

March 5.

MARSHALL, Ch. J. declined giving an opinion, conceiving himself to be in a remote degree interested in the stock of the insurance company.

of Alexandria

*The other three judges delivered their opinions se- Mar. Ins. Co. riatim, as follows:

WASHINGTON, J. It does not appear upon the record that any other evidence was offered to prove the vessel unsound on the 24th of October, than the report of the surveyors. No parol testimony appears to have been offered to explain the report, or to apply it to the time of commencing the risk. The bill of exceptions is repugnant. It asks an opinion predicated upon the unsoundness of the vessel on the 24th of October, and relies upon the report of the surveyors, which applies only to the 31st of October. If it was intended to bring before this court the propriety of admitting parol evidence to explain the report, that question does not appear to arise from the record.

I see no reason for reversing the judgment.

I do not, however, mean to be understood, that if parol evidence had been offered, it would have been proper to receive it. I give no opinion upon that point.

PATERSON, J. No parol evidence appears upon the record to show that the report of the surveyors ¡eferred to the 24th of October. The conclusiveness of the report, therefore, did not come before the court. It is not a point in the cause.

CUSHING, J. This is an action on a policy of insurance. The defence set up is, that the vessel was unsound and rotten on the 24th of October, when the risk commenced; and it is alleged that the report of surveyors is conclusive evidence of that fact. But the report does not apply to that time. Let the judgment be affirmed with costs.

the

V.

Wilson.

In a decla

ration, the a

*WILSON v. CODMAN'S EXECUTOR.(a)

ERROR from the circuit court of the district of

verment that Columbia, sitting at Alexandria. the assign

need not be

cation stating

a departure

ment of a proIt was an action of debt originally brought by John missory note Codman, as assignee of a promissory note made by the was for value defendant, Wilson, to Andrew and William Ramsay.(b) received, is an immaterial a- The declaration was as follows, viz. "John Codman, verment, and assignee of Andrew Ramsay and William Ramsay, proved. If the complains of William Wilson, in custody, &c. of a defendant plea that he render unto him the sum of 1,038 dollars plead the bankruptcy of and 80 cents, which to him he owes, and from him un the endorsor justly detains, &c. for this, to wit, that whereas the in bar, a repli- said defendant, on the 26th day of June, 1799, at Alexthat the note andria, in the county aforesaid, by his certain note in was given to writing, subscribed with his proper hand and name, and the endorsor, in trust for the to the court now here produced, the date whereof, plaintiff, is not &c. did promise to pay to the said Andrew and Wilfrom the de- liam Ramsay, or order, forty-five days after date, claration 1,038 dollars and 80 cents, for value received, negotiawhich alleges the note to ble in the bank of Alexandria; and the said Andrew have been gi- and William Ramsay, afterwards, to wit, on the 23d ven by the deday of October, in the year of our Lord 1802, at the lue received. county aforesaid, by their certain writing endorsed on gainst the a- the said note, and subscribed with their proper hands gent cannot and names, assigned the said note to the said plaintiff, be offset a- for value received, of which assignment the said defendant, afterwards, to wit, &c. had notice; by means Upon the whereof, and by force of the act of assembly of Virgi plaintiff, and nia in such case made and provided, before the year appearance of 1801, action accrued," &c. There was an office judg the defendant ment against the defendant and his appearance bail, is not entitled to set aside which the latter pleaded nil debet for his to a continuBut he principal, at June term, 1803.

fendant for va

Claims a

principal.

death of the

his executor,

ance.

may insist on

At December term, 1803, the suit was entered abathe produc- ted by the plaintiff's death. Afterwards, at the same ters testamen- term, on the motion of Stephen Codman, by his attortary, before

tion of the let

the executor

shall be per- Justices. (a) Present, Marshall, Ch. J. Cushing, Paterson and Washington,

mitted to pro

secute.

*194

(6) An act of assembly of Virginia authorizes an assignee of a promissory note to maintain an action of debt in his own name against the maker of the note.

V.

ney, it was ordered," that the said Stephen Codman, Wilson executor of John Codman, deceased, be made plaintiff Codman's Exin this suit, with leave to prosecute the same." 1

At June term, 1804, the defendant gave special bail, and "moved the court for a rule upon the plaintiff to grant oyer of his letters testamentary, to enable the defendant to answer the plaintiff, which was opposed by the plaintiff's attorney, and the motion was refused by the court," whereupon the defendant took a bill of exceptions. The plea put in by the appearance bail for the principal was withdrawn, and the latter pleaded, 1st. Nil debet, upon which issue was joined; and, 2d. That before the 23d day of October, 1802, the time stated in the declaration, when A. & W. Ramsay are supposed to have assigned the said note to the said John Codman, the said A. & W. Ramsay had been declared bankrupts, &c. and on the day of March, 1802, had duly obtained their final discharge, &c. To this plea the plaintiff replied, that on the 20th of June, 1799, the defendant was justly indebted to John Codman, the testator, in the sum of 1,038 dollars and 80 cents, and in consideration thereof, on that day made and executed the promissory note in the declaration mentioned, for that sum, to A. & W. Ramsay, as the agents of, and in trust for the use of, the said John Codman, the testator; and concluded with a verification. To this replication the defendant demurred specially; 1st. Because it is a departure from, and is inconsistent with, the declaration, in this, that the declaration affirms that the said note was payable to Andrew and William Ramsay, for value received, and was by them assigned, for value received, to the said John Codman; and the replication affirms, that the said note was executed and delivered to the said A. & W. Ramsay, as the agents of, and in trust for the use of, the said John Codman; 2d. Because the plaintiff, in his replication, ought to *have traversed the plea, and tendered an issue thereupon, and ought not to have replied the said special matter, and concluded with a verification; 3d. Because the said replication is informal and insufficient, &c.

Upon this demurrer the court below adjudged the issue in law for the plaintiff.

Upon the issue in fact, the jury found a verdict alo

ecutor.

*195

V.

Wilson for the plaintiff; and on the trial four bills of exception Codman's Ex- were taken by the defendant. The 1st was to the refuecutor. sal of the court to instruct the jury, that the plaintiff

* 196

ought to produce in evidence his letters testamentary, to enable him to maintain the issue on his part.

The 2d bill of exceptions stated, "that the defendant produced testimony to the following facts, viz. that A. and W. Ramsay, on the 13th of August, 1799, when the note in the declaration mentioned became due, were indebted to him on their own account in a large sum of money, to wit, in the sum of 8,000 dollars, and continued indebted to him always thereafter, to that or a greater amount,_until_they became bankrupt, in November, 1801. That they had taken the said note for the use and benefit of John Codman, and not for their own, and were authorized, as his agents, to receive payment of the said note for his use, from the date thereof, until the day of May, 1800. That the said John Codman urged payment to be made; and during this period of time, sundry payments in money were made to the said A. & W. Ramsay, by the defendant, who, at the time of making such payments, did not mention any definite purpose or use for which they were made. That the said Andrew & William Ramsay, during the period aforesaid, viz. from the 13th of August, 1799, to the time of their bankruptcy, had authority to receive no other debt from the said William Wilson, except the debt due on the note aforesaid, and on another note for about the same sum, due for the use of said John Codman. And the defendant moved the court to direct the jury, that if they shall be of opinion, that at the times respectively when William Wilson, the defendant, made payments in money to Andrew & William Ramsay, of sundry sums, after the note became due upon which this action is brought, they, the said A. & W. Ramsay, were indebted to him on their own account, always after the said note became due, to an amount exceeding 8,000 dollars, and were not authorized, during the whole of the time, from the 13th August, 1799, till their bankruptcy, to receive any other debt due from W. Wilson, the de fendant, for the use of any other person, except the debt due on the note, which is the ground of this action and another note for about the same sum, which they held as the agents of John Codman, and in trust for his