Gambar halaman
PDF
ePub

It is

non-compliance, and whether the loss happened in
consequence of such non-compliance, or not.
a condition precedent; and an innocent, an ignorant,
or a compulsive violation of a warranty, however
immaterial, avoids the contract of insurance. Park,
318. 326. 363. 369. Marshall, 348. 354.

March 13.

MARSHALL, Ch. J. delivered the opinion of the court as follows, viz.

The material question in this case grows out of an exception in a policy of insurance.

The plaintiff insured a specified sum on the brig Richard, belonging to the defendant, "at and from Tobago to one or more ports in the West Indies, and at and from thence to Norfolk ;" and the insurance is declared to be made against "all risks, blockaded ports and Hispaniola excepted."

The Richard sailed from Tobago for Curraçoa, which was then blockaded in fact, but the blockade was not known at Tobago when the vessel sailed, nor was it known to the captain until he was warned off by a British ship of war. He then sailed for Norfolk; but on his voyage was captured by a French privateer, by whom the vessel was plundered to a considerable extent, and ordered to St. Domingo for trial.

The question is, whether this risk comes within the exception contained in the policy.

The counsel has considered the exception as a warranty; but the court cannot so consider it. The words are the words of the insurer, not of the insured; and they take a particular risk out of the policy which, but for the exception, would be comprehended in the contract.

YEATON

V.

FRY.

YEATON

V. FRY.

What is that risk?

Policies of insurance are generally the most informal instruments which are brought into courts of justice; and there are no instruments which are more liberally construed, in order to effect the real intention of the parties, if that intention can be clearly ascertained.

In that part of the policy on which the present controversy depends, a few words are given, to which others must be subjoined in order to complete the sense, and give a full description of the risk against which the underwriters were unwilling to insure. These words are, "blockaded ports and Hispaniola excepted."

It is reasonable to suppose that a voyage to Hispaniola was not insured. The assured has notice of this, and if he sails for Hispaniola, the voyage is entirely at his own risk. Against the risks of such a voyage, whatever they may be, the underwriters will not insure. It is a specified place, excluded, by consent, from the policy. The perils attending the voyage are understood, whether they arise from the sea, or otherwise, and are all excepted. The motives for making the exception do not appear, nor can they be inferred from the instrument.

The plaintiff in error contends that the same reasoning applies, in its full extent, to the exception of blockaded ports; but the court does not think so.

Hispaniola is excepted absolutely from the policy; but other ports are within the terms of the voyage insured, if they be not blockaded. It is their character, as blockaded ports, which excludes them from the insurance. Their being excepted by this character is thought to justify the opinion, that it is the risk attending this character which produces the exception, and which is the risk excepted. The risk of a blockaded port, as a blockaded port, is the risk incurred by breaking the blockade. This is defined

V.

FRY.

by public law. Sailing from Tobago for Curraçoa, YEATON knowing Curraçoa to be blockaded, would have incurred this risk, but sailing for that port, without such knowledge, did not incur it.

The underwriter had no objection to a voyage to Curraçoa, other than might arise from its being blockaded. The dangers of the blockade, therefore, were the particular dangers which induced the exception, and it seems to the court that the exception ought not to be extended beyond them. If this be correct, the circuit court committed no error in refusing to give the opinion which was required by the counsel on this point.

The sentence in this case is sufficiently authenticated to be received as evidence. Being a court acting under the law of nations, its proceedings may be proved according to the mode observed in the present case; and were this doubtful, that doubt would be removed by the circumstance that it is the form stipulated by treaty.

The defendant is not at liberty to except to his own depositions, because he does not produce proof of his having given notice to the plaintiff. The admission of notice by the plaintiff is certainly sufficient, if notice to him was necessary, to enable him to use the defendant's deposition.

The fourth bill of exceptions depends on the principles stated by the court, in the first part of this opinion.

There is no error in the judgment of the circuit court, and it is affirmed, with costs.

OWINGS

V.

NORWOOD'S
LESSEE.

OWINGS v. NORWOOD'S LESSEE.

tween two citi

land, for a tract

defendant set

In an action of ERROR to the court of appeals of Maryland, being ejectment bethe highest court of law and equity in that state, in zens of Mary- an action of ejectment brought by the defendant of land in Ma- against the plaintiff in error, both parties being citiryland, if the zens of Maryland, for a tract of land in Baltimore up an outstan County, called "The Discovery," being part of a tract ding title in a of land called Brown's Adventure, originally patented British subject for 1,000 acres to Thomas Brown, in the year 1695, which he contends is prowho conveyed to John Gadsby, who conveyed to tected by the Aaron Rawlins in 1703, who mortgaged in fee to treaty, and therefore the Jonathan Scarth, a London merchant, by deed of title is of the bargain and sale, in 1706, with a proviso to be void plaintiff; and the highest upon payment of 800% sterling, with interest, on the state court in 13th of May, 1709. Scarth and his heirs were alMaryland decides against ways British subjects resident in England, and never the title thus were in Maryland; but Scarth was charged with the set up; it is not set up to quit-rents, in the Lord Proprietor's debt-books, up a writ of error to the time of the revolution. Rawlins, however, can lie to the by his will, in 1741, devised the land specifically to of the United some of his children, without taking any notice of the mortgage. In 1732, Littleton Waters attached, case arising and obtained judgment of condemnation against the under a trea- land, for a debt due to him from Scarth, but never ty." The judi took out any execution upon the judgment; and by be restrained deed of lease and release assigned all his right in by the consti- the land to the Baltimore company, under whom the United States. plaintiff in error claims.

supreme court

States.

It is not "a

ciary act must

tution of the

In October, 1794, Norwood obtained an escheat warrant to affect the tract called Brown's Adventure, upon suggestion of a defect of heirs of Brown, the original patentee. In June, 1800, he obtained a patent from the state founded upon the proceedings under that warrant, for 520 1-2 acres, being part of Brown's Adventure, with an addition of 26 acres of vacant land, and thereupon brought his action of ejectment against Owings. Upon the trial the original defend

V.

NORWOOD'S
LESSEE.

ant, in order to show an existing title out of the OWINGS plaintiff, contended that the mortgage to Scarth was protected from confiscation by the British treaty of 1794, and was still a security for the money to the representatives of Scarth, who were proved to be still living in England. "But the court were of opinion that on the expiration of the time limited in the mortgage for the payment of the money, a complete legal estate of inheritance vested in the mortgagee liable to confiscation; and was vested in the state by virtue of the act of confiscation of October session, 1780, c. 45. and the act of the same session, (c. 49.) (to appoint commissioners,) subject to the right of redemption in the mortgagor and his heirs, and that the British treaty cannot operate to affect the plaintiff's right to recover in this ejectment."

The verdict and judgment of the general court being affirmed in the court of appeals of Maryland, and being against the right claimed under the treaty, Owings sued out his writ of error under the provisions of the 25th section of the judicary act, vol. 1. p. 63. which enacts, that a final judgment in the highest court of a state, in a suit "where is drawn in question the construction of any clause of a treaty, and the decision is against the right claimed under such clause of the treaty, may be re-examined and reversed or affirmed in the supreme court of the United States."

Harper, for the plaintiff in error.

The question in this case is, whether Scarth's interest in the land was protected by the treaty of peace with Great Britain. By the 5th article of that treaty"it is agreed that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights." The case of Higginson and Mein, decided by this court, (ante, vol. 4. p. 415.) was, in substance, the same as this. In both, the time of payment had passed before the confiscation; and the legal estate

[blocks in formation]
« SebelumnyaLanjutkan »