father on the letter above mentioned, and the questions submitted to the

court were:

1. Did the letter make the defendant absolutely liable for the purchases, or was it a mere guaranty?

The court were of opinion, that the letter was a mere collateral undertaking on the part of the defendant, and that he did not intend to bind himself absolutely and at all events.

2. Was the letter a continuing guaranty?

The court decided that it was.

3. What was the effect of the letter?

On this point the court thought that if the plaintiff intended to rely on the defendant as security, he ought to have given him notice of his acceptance of the guaranty in a reasonable time. What was a reasonable time would depend on the circumstances of every case; but the court were clearly of opinion, that the plaintiff, delaying to notify the defendant of his acceptance of the guaranty, from October, 1831, till February, 1834, clearly discharged the defendant from all liability, and by agreement of parties the plaintiff became nonsuit.

USURY.

In an action on a bill of exchange, the ground relied upon in the defence was usury. The bill was drawn by Robert M. N. Smyth, and accepted by the defendant, Thomas Hobart. The amount was $5,000, and the time six months. At the trial, before Judge Dewey, the defendant proved by one Whitney, that he was the agent of Smyth in negotiating the sale of this bill; that he sold it to the plaintiff for the sum of $4,400, it being then agreed between him and the plaintiff, that a discount of $600 should be made on the amount of the same; that he received the said $4,400, and paid the same to Smyth. The case was subsequently argued before the whole court, who held that a usurious transaction in relation to a bill of exchange, between the drawer and the holder, is no defence to an action against the acceptor.

In the recent case of Palmer Cleveland v. Benjamin Frelen and S. Draper, Jr., the Chancellor of New York decided:

1. That if it is a part of an agreement for the loan of money, that the borrower shall take uncurrent bills at a higher rate than their actual value in cash or current funds, the loan is usurious.

2. That where a loan is secured by the transfer of stock, with a stipulation that the lender shall have the privilege of taking a part thereof in full satisfaction of the loan, the parties, at the time of agreement, anticipating a great increase in the value of the stock, the transaction is usurious.

3. That whenever the lender stipulates even for the chance of an advantage beyond the legal interest, the contract is usurious, if he is entitled, by the agreement, to have the money lent, with the interest thereon, repaid to him, at all events.

INSURANCE.

TOTAL LOSS.-The case of Hall v. Ocean Insurance Company, Boston, was an action on a policy of insurance for $2,000 on the brig Alvara, valued in the policy (premium included) at $4,000. The risk was for one year, and it was proved, that within the year, on the passage to the West Indies, sea damage was sustained to considerable extent, which rendered it necessary

for her to go to Bermuda in distress, to be repaired. Two surveys were there had, and the result was, that the captain undertook to sell the brig. And the question was, whether there was a legal necessity for the sale. If there was, the plaintiff should recover for a total loss; but otherwise the defendants should be subject only to a partial loss. According to the plaintiff's estimate founded on the surveys, the amount fell short of one half of the amount insured. But the plaintiff insisted that wages and provisions, after the sale of the cargo on January 12, 1836, until a reasonable time had elapsed for the repairs of the vessel, should be allowed and added to the items of partial loss, to ascertain whether a technical total loss had occurred in the case. With this addition there would have been clearly a technical total loss. After full argument, the Court decided in favor of the defendant, and made the following points, viz:

1. Making the estimate to ascertain whether the loss amounts to that sum, items, which should be carried to the amount of general average, should not be included.

2. The expenses incurred to ascertain the extent of the loss should not be included in the charges to make up the fifty per cent.

3. Wages and provisions of the officers and crew while the ship is undergoing repairs, are not to be computed as part of the particular average. 4. A fair allowance for the superintendence and for the custody of the vessel, if necessary, while the repairs are going on, should be made, and is to be charged to the account of labor from which one third is to be deducted.

5. The services of the officers and men may be rendered by them as laborers in making the repairs, and their labor is chargeable as if other laborers had been employed.

The case of Williams and others v. Suffolk Insurance Company, tried in the United States Circuit Court, in Boston, was an action brought to recover $2,000 for outfits on board the schooner Breakwater, of Stonington, Connecticut. Judge Story decided in favor of the plaintiffs, and held:

1. That the necessary sale of a vessel, in the course of a voyage, to defray salvage, creates of itself a total loss of the vessel for the voyage. 2. Where the object of the voyage is entirely defeated, and the vessel is obliged to return home, it cannot be treated as a case of a voyage to a port of necessity for repairs, but there is a total loss.

The case of Cushing Bryant v. Ocean Insurance Company, of Boston, was an action on a policy of insurance on the brig Hope, of Newcastle, for one year, from January 5, 1837, for $9,000. The vessel was lost on her first voyage to New Orleans. At the trial, before Chief Justice Shaw, the defence was opened upon two grounds: first, that the vessel was unseaworthy, which was finally abandoned; and second, that the plaintiff, when he applied for the insurance, made certain representations concerning the manner in which she was to be loaded and employed, which had not been complied with, namely, that he was taking in paving stones for ballast, and should fill up with hay for New Orleans. Whereas, in fact, he put on board a cargo of paving stones, and no hay; and the correspondence between the parties was offered as proof.

C. G. and F. C. Loring, for the plaintiff, objected to the reception of this evidence, unless it was intended to show that this was a false representation, made fraudulently, for the purpose of inducing the defendants to execute the policy; and they stated many reasons for the objection. And, after the respective counsel had presented their views, the chief justice ruled, that the

evidence was inadmissible, unless it was intended to prove a fraudulent misrepresentation, made for the purpose of procuring the policy. He considered that there was a material and well established distinction between the statement of an expectation, and a collateral fact then existing; and that the former did not constitute a representation, which could be given as evidence to avoid a policy, and that this was substantially nothing more. That the correspondence was mere inducement, or preliminary to the contract, and no part of it; and that the proposed evidence, if admitted, would materially alter and control the written contract finally made; inasmuch as, by its terms, it covered the vessel in any lawful voyage she might be engaged in, and with any proper cargo with which she might be loaded; while this testimony, if admitted, would be to limit it to the performance of one particular voyage at that time, and with one particular cargo.

That the intent stated in such representation, though duly made, might be subsequently changed of necessity, or in good faith, consistently with the terms of contract applied for, and that actually made; and if the insurers meant to insure for a particular voyage, or with a particular cargo, it should have been so stipulated in the policy.

After full argument before the whole court, they decided that the ruling of the chief justice at the trial was right, and rendered judgment for the plaintiff.

GENERAL AVERAGE.-In the case last above mentioned, the court also decided:

1. That no loss or expense is to be considered as general average, and so applied in making up a loss, unless, in the first place, it was intended to save and preserve the remaining property; and unless, in the second place, it succeeded in doing so.

2. The expenses and charges of going to a port of necessity to refit, can properly be a general average only when the voyage has been, or might be resumed. But the doctrine does not apply if the voyage has been abandoned from necessity.

An important marine insurance case was decided in the Superior Court in the city of New York, Justice Jones presiding, on the 15th of April last, which occupied the court for three days.

It was an action brought by Brander, Murray, and Gallagher, against the Washington Marine Insurance Company, for an average loss on 2,400 bags of wheat, imported in the bark Favorite, from Rotterdam, in the spring of 1837. It appeared in evidence, that the vessel sailed in January, that in February she encountered a gale of eight days' duration, during which she leaked considerably, and the pumps were obliged to be kept going the whole time. She arrived at this port on the 31st of March. On the 4th of April, her hatches were opened, and Mr. Gallagher, one of the plaintiffs, went aboard, obtained samples of the wheat, and, for more than ten days, offered it for sale in the market (which was daily declining) as sound, and was unable to dispose of it. About the 22d of April, two gentlemen, dealers in grain, examined the wheat. One of them went once on board the ship when she was two thirds discharged, saw some damaged around the sides of the vessel, and examined some six bags in the centre, the grains of which he found swollen and the smell musty. On this examination he pronounced the cargo all damaged. The other gentleman was twice or thrice on board the vessel, there made a similar examination, and also, before the cargo was all discharged, went

into the store, and examined some fifty bags indiscriminately, and he too pronounced the whole damaged, because of its smell. The wardens were on board the ship three times, and surveyed four hundred bags, which they declared to be damaged by leaks, and one hundred and fifty bags damaged by sweat of the hold; and, afterwards, in the store, certified the whole to be musty and damaged. It seemed to have been admitted on both sides, that the hundred and fifty bags were consigned to Messrs. Boonen, Graves, & Co., who had some fifteen hundred bags of grain on board the same vessel. The clerk of the plaintiffs testified, that he notified the company of the damage, and intended sale; and Mr. A. B. Neilson proved, that the average adjustment was made up accurately, if the data were correct. Amount claimed, with interest, about $5,400.

For the defence it was contended, that not exceeding four hundred bags of the twenty-four hundred were damaged; and because a part of a cargo was injured by the perils of the sea, the plaintiffs had no right, either in equity or law, to sacrifice the whole at auction, and claim upon the underwriters. That the sound was mixed together, in two large heaps, with the unsound, and in such a manner, that, at the sale, purchasers could neither examine the article, nor see the lots on which they were bidding.

It appeared, on testimony, that Mr. Brander, one of the plaintiffs, called at the office of the assured, on the 27th of April, after the cargo was all discharged, and said that four hundred bags were damaged. By a calculation made in his presence, the loss on that portion would not constitute an average; that next day, Mr. Murray, another of the plaintiffs, called at the office, and said the whole cargo was damaged, and was to be sold on account of the insurers.

To prove the true condition of the wheat, the insurers produced all the purchasers, except two, who did not buy to exceed one hundred bags in all. Five purchasers, chiefly millers, who ground the wheat, bought one thousand four hundred and seventy-two bags; they testified, that it was good and sound, and better in condition than a large portion of the foreign wheat sold at private sale as sound. One testified it was by twenty-six the bushel sounder than wheat which he, within a few weeks afterwards, bought from the very plaintiffs, at private sale, as sound wheat. Two purchasers, whose lots amounted to seven hundred and ninety bags, testified: One, that his lot (one hundred and seventy bags) was not all damaged; some of the bags were stained, how many, he could not tell; but he paid some fiftyeight cents per bushel, and considered it really worth $1 25. The other, who bought six hundred and twenty bags, saw some of it emptied out, and about one fifth part of that which he saw was swollen, and he considered the whole unmerchantable. A portion of his, however, was shown to have been taken from that part of the store where the really damaged grain was placed. That the balance of the lot, about one hundred and thirty-eight bags, was admitted by the company to be damaged. Much testimony was adduced, on both sides, as to the smell. All the witnesses of the defendants, and several for the plaintiffs, said, that all foreign grain had the ship smell—that no single cargo was' free from it-that the grain in question was old grain. And several witnesses testified that it was the custom of the trade to separate the sound bags from the unsound; and in offering the damaged for sale, it was usual to arrange the bags in lots, so that at least one end of each bag could be inspected. That it was unusual to heap a whole cargo in bulk, sound and unsound, in such 2 manner that bidders could not see the article, and so sell it. 21

TOL. I.NO. II.

The judge charged the jury to this effect:

-That the assured is bound to separate sound merchandise from unsound; and only the damaged is to be sold on account of the underwriter. That such an examination as was bestowed upon the grain in question was not enough, namely, to examine cursorily a few bags here and there, and then pronounce upon the whole; but each package must be examined. That if the wheat was unmerchantable, it did not follow that that was caused by a peril for which the underwriter was liable. That it did not look so bright as new wheat, or that it had a smell, or because it would not make flour to pass New York inspection, it did not follow that the underwriters were liable. They were only responsible for damage arising from the immediate perils of the sea. It was for the jury to decide how much of the damage arose from that cause, and if it amounted to an average, then the plaintiffs were entitled to recover, to that extent, and no more. The chief justice examined the evidence with great clearness and precision, and showed that a large portion of the two thousand four hundred bags were sound; that that opinion was expressed by the miller who examined it closely, ground it into flour, and eat the bread made of that very flour, which was sweet and wholesome.

The jury brought in a verdict for the plaintiffs, of $2,193, less the premium note, making the real amount of their verdict $1,808. Amount claimed, $5,400.

FIRE INSURANCE.We give the following case, as it is interesting in several points, and more particularly so in one, as showing that the responsibility of the insurers is not avoided by a dispossessal of property by force of law.

Hugh Findlay, to the use of his assignee, A. B. Spence, v. The Franklin Fire Insurance Company of Philadelphia, in the District Court of Pennsylvania, January 10, 1839, before Pettit, president, and a special jury.

This was an action of covenant on a policy of insurance dated January 31st, 1831, for $8,000, on the stock of merchandise of the plaintiff, in his store, in South Florence, Alabama.

The facts of the case were these: The policy covered a stock of goods, of various descriptions, owned by the plaintiff, a storekeeper in South Florence, and was obtained for a premium of $80 for one year. In the summer of 1831, the insured became embarrassed in his concerns, and in September, 1831, the sheriff of Franklin county, Alabama, made a levy upon the stock, took possession of the store, closed it, barred and nailed the windows and doors, and advertised a sale to take place on the 29th of September. On the 28th of September the building took fire, and the goods were consumed; the loss was nigh, if not entirely, total. The notice to the plaintiffs, and the preliminary proofs, were sent by mail, and received by them on the 28th of October, 1831. On the 7th of October, the policy was assigned by Findlay to Spence, and suit brought shortly afterwards. The questions of law which arose in the case, were: First, whether the levy of the sheriff so far divested the insured of his interest in the goods as to defeat his right of recovery. Second, whether the levy increased the risk of the insurers so as to vitiate the policy. And thirdly, whether the loss of the insured was to be estimated by either, and which, of the following tests: the cost of the goods at either of the usual markets, Philadelphia, New York, or Nashville, with or without the actual expense of transportation; or their value, at sheriff's sale, a. South Florence, or prospective profits on tail sales of the stock.