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Duer on Marine Insurance.

trates, in a lecture or commentary, the principles and rules applicable to each head or branch of the contract, and then, in a supplement, which immediately follows, it analyzes and comments upon the various leading decisions and authorities bearing upon these principles and rules. It thus furnishes the student, as well as the practical lawyer, in the most convenient and useful form, not only with the general principles and rules which he must apply to each case as it occurs, but also with those illustrations derived from the leading decisions, or other authorities, by which the rules and principles, previously laid down, may be tested and explained. In the course of these illustrations, Dr. Duer comments with singular ability, upon the several decisions and other authorities to which he refers; and he does not hesitate to point out, though uniformly in a most becoming spirit, any deviation he observes, or to which he deems it right to call the attention of his readers, from the correct principle or rule which he thinks applicable to the case. This is a very valuable part of the work; and it is one which might be usefully followed by our own juridical writers. It requires, doubtlessly, to its proper execution, a perfect comprehension of the subjects under discussion, and a thorough knowledge of the law and practice applicable to the point at issue; but, without such qualifications, no person should aspire to the rank of instructing others in any department of jurisprudence. The work commences with an ingenious and learned discourse on the question which has been so frequently agitated, as to whether the contract of insurance was known to the ancients, and particularly to the Roman lawyers. This is by far the most full discussion of this question which is any where to be found.

The account which this learned writer next gives of the introduction of the contract of insurance in modern times, is very interesting, and his review of the various authors who have treated of this contract, is exceedingly full and accurate.

After these introductory matters, which are not without their use even to practical lawyers, Dr. Duer proceeds to the main object of his work. His arrangement is very different from what has been usually followed in similar treatises, and leads him to discuss many topics connected with marine insurance, as to which no information is to be found in any of the ordinary treatises on the subject. He begins by treating of the policy and of the parties to the contract, but in treating these matters he discusses all the doctrine relating to illegal insurances, and in this part of the work he gives much original and valuable information on the subject of the breach of municipal laws, of the insurance of enemy's property, of trading with the enemy, of neutrality, of contraband of war, of blockade, of domicil, and of the right of search, and of several collateral topics, which, though all essential to a complete view of marine insurance, have never been introduced into any of our ordinary treatises on that subject.

It will thus be seen that this work aspires to the high rank of an international treatise on marine insurance, giving the law applicable to the contract during war, as well as during peace, and thus combining a complete view of this contract. With this object in view, Dr. Duer has made ample use of all the English and foreign authorities which treat on this subject, and he has very skilfully presented to his readers the results of his great and laborious research.

In the first lecture, or commentary, (for the work is divided into lectures, as if addressed to students,) the author discusses all that relates to the form and execution of the policy. And here he explains the rules on this subject, which have been adopted in England and in other European states, and also in America. To show how completely this work may be viewed as

Duer on Marine Insurance.

as

a practical English authority, we may remark in passing, that the discussions into which the author has entered as to the English stamp laws, applicable to policies of insurance, and as to the alterations which may be made on the policy without affecting the stamp, are as satisfactory as any professional lawyer could desire.

The next lecture relates to the construction of the policy; and contains one of the best chapters which was ever written on the interpretation of con

tracts.

In the subsequent lecture the learned writer discusses with consummate ability, an important question in the construction of a policy, as to what will constitute such a valid usage as may be permitted to be given in evidence for the purpose of controlling or explaining the terms used in a policy.

After discussing these matters, the author is led, in order to complete his plan, when treating of parties to the contract, to discuss the subject of illegal insurances. And on this branch, he treats first of insurances which are illegal, as in breach of municipal laws; and here he introduces a subject which, if glanced at by some previous authors on insurance, has certainly never been so fully or satisfactorily explained and discussed as by Dr. Duer; and the "proofs and illustrations" which he subjoins are of the greatest practical value.

The next subject of illegal insurance relates to the enemy's property; and here the learned author discusses a branch of international law, as to which there has often been much misapprehension, but which he explains and illustrates in a singularly able and satisfactory manner.

The succeeding lecture also relates to the insurance of enemy's property; and it contains a very full and able discussion of the law of domicile, so that the character of enemy may be clearly ascertained.

The next lecture relates to "trade with the enemy," and explains how far neutrals carrying on such trade can effect valid insurances. This leads to a discussion as to licenses and as to contraband of war, and other collateral matters, which are all treated with the vigor and talent which characterizes every part of this able work.

The learned author next discusses those questions which relate to the breach of neutrality, and in the course of this discussion he treats largely of the subject of blockade, and of the consequences to which it leads. We do not know any work in the English language in which this subject is so fully and learnedly discussed.

In the following lecture the discussion relates to the right of neutrals to carry on any trade during war from which they are excluded during peace, and it discusses various topics touching the breach of neutrality. In the course of the discussion, the learned author adverts to the much agitated question as to the right of search of neutral merchant ships, by the cruisers of the belligerent powers; and with a candor which might be anticipated from his vigorous intellect, he frankly admits this right of search as an indispensable concomitant of war, and repudiates the opposite doctrine, which has been so often urged, on the principle that free bottoms make free goods His disquisitions on the resistance to the right of search are extremely valuable, as contributions to international law. And with this valuable lecture, together with the "proofs and illustrations" appended to it, the first volume concludes.

The first lecture in the second volume relates to the parties to the contract and to the assignment of the policy; and the next lecture relates to insurances effected by agents. The work is worth possessing for these lectures alone. In the course of this discussion the law of lien, as applicable to agents, is very clearly explained and illustrated.

Obituary.

The next subject of discussion relates to the effect of the concealment of material facts upon policies of insurance, and of the duty to the insurer to make a full disclosure, and the limitations and exceptions to which this rule is subject, are explained and illustrated in a manner that reflects the highest credit upon the sagacity and learning of Dr. Duer.

The last subject treated in the second volume, is the important and somewhat difficult doctrine of representation, as distinguished from warranty. The whole of this intricate and perplexed subject is discussed by the learned writer with a vigor and precision truly admirable.

To each of these subjects the most useful "proofs and illustrations" are appended; and all the discussions, though chiefly referring to English law, are enlivened and illustrated by a reference to the American decisions and authorities, as well as to those of Continental Europe.

We understand that Dr. Duer intends to complete his course of Marine Insurance, by the publication of another volume. And when this volume shall appear, if it shall be executed as skilfully as its two predecessors, we venture to say that we shall then be possessed not only of one of the most valuable contributions to jurisprudence of which our language can boast, but of the most complete and comprehensive treatise on marine insurance which has ever been published.

The two volumes, to which our review has applied, are complete of themselves, and combine such a variety of treatises on so many important subjects connected with marine insurance and with general law, 'as to be of inestimable value, even though the third volume should never appear. But such is our opinion of the talents of the author, and of the skill with which he applies his learning and research, that we should deplore the want of the concluding volume of this interesting work as a serious loss to the science of jurisprudence.

There are many important general questions which Dr. Duer has discussed with infinite learning and ability, into some of which we, at one time, intended to enter, and to examine, with some minuteness, the views of this learned writer. But however inviting such a discussion might be, we have thought that we should better consult the benefit of our readers by confin. ing their attention to the labors of Dr. Duer, than by any disquisitions of our own. And we, therefore, conclude this brief and imperfect account of one of the most valuable treatises of jurisprudence which this age has produced, by again stating our conviction that we could not render a more important benefit to any person, who desires to understand the doctrine of marine insurance, than by referring them to the learned labors of Dr. Duer.

[NOTE. We have been compelled, for want of space, to abridge the Review of the learned Doctor's very able work. The Review in the Law Magazine occupies nearly thirteen pages.-ED.]

OBITUARY.

SINCE the publication of our last number, the Bar of New-York has lost two of its greatest ornaments-men alike beloved and admired for their private worth and for their high legal standing-DAVID B. OGDEN, Esq., and JOHN L. LAWRENCE, Esq.

Meetings of the Bar have been held, and resolutions of respect to their memories have been passed. In our next number we shall endeavor to give in detail the resolutions passed, and a brief account of what took place at the meetings.

THE

ew-Bork Begal Observer.

VOL. VII.]

NEW-YORK, SEPTEMBER, 1849. [MONTHLY PART.

IMMATERIAL VARIANCES.

In all the various business transactions and relations of life, the amount or extent of one person's indebtedness to another is considered material. And where no contract exists, the same train of thinking and reasoning has been adopted. Thus, persons who are about retiring from business, are accustomed to consider the amount of the fortune which they have acquired as material in influencing their determination. And so strongly has this idea taken possession of the human mind, that it influences the dying bequests of the aged, enlivens the hopes of youth, and strengthens and sustains the exertions. and labors of the middle-aged. And that individual 'who can throw himself across this strong current of hopes and efforts, and teach mankind that the amount of their earthly possessions is immaterial, must possess a vigor of intellect far exceeding that of any one who has yet appeared on the stage of action to influence and control the human mind.

It has been said, falsely, perhaps maliciously, certainly with cruel and bitter sarcasm, that the court of appeals of this state has commenced this great work, and actually entered upon the accomplishment of it. That in deciding a case in relation to the sufficiency of a notice of protest to charge the endorsers of a promissory note, that court has intimated that a variance between the amount of the note as stated in the notice of protest, and "the note intended to be referred to," was immaterial.

The question arose on the sufficiency of a notice of protest to charge the defendants as endorsers of a promissory note in the words and figures following, to wit:

"$600.

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Ninety days after date, I promise to pay to the order of F. L. Griswold and E. A. Warden, six hundred dollars, for value received, at the Cayuga County Bank.

"Auburn, N. Y., January 30, 1845.

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Immaterial Variances.

The notices of protest were directed to each endorser individually, by which he was "requested to take notice, that S. Warden's note for three hundred dollars," endorsed by him, was protested for non-pay

ment.

On the second trial of the cause, at the Cayuga circuit, in January, eighteen hundred and forty-eight, the defendant's counsel requested the justice before whom the same was tried, to decide among other things, as a question of law, that the plaintiffs had not proved enough to entitle them to recover, or to charge the defendants as endorsers of the note in question.

"First. Because the notice of protest served on the endorsers, was not a notice of protest of the note in question, but was a notice of protest of a three hundred dollar note, instead of a six hundred dollar note.

"Second. Because the note is made payable to the order of the defendants jointly, and is endorsed by them jointly, and the notice of protest served speaks only of an individual endorsement."

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The justice sustained the objections and rendered judgment for the defendants, which the supreme court refused to set aside; and the plaintiffs removed the cause by writ of error into the court of appeals. On deciding the case, the judge, who delivered the opinion of that court, says, "It is contended that the notice of protest, merely informs the defendants of the non-payment of a note drawn, and endorsed respectively by the defendants, for $300, and not of a note for $600, endorsed by the defendants jointly. Concede that such variance or mistake exists. It is well settled in accordance with good sense, that an immaterial variance in the notice will not vitiate it." The point decided was one not in the cause, and neither raised or presented to the court, or disputed by either party, viz: that "an immaterial variance" would not vitiate" a good notice. And although a casual reader of the opinion might infer that the court intended to decide that a variance between the amount of the note produced, and the amount of the note, which each defendant was requested to take notice had been individually endorsed by him, and protested for non-payment, was immaterial, it will be found on a very slight examination of the question, that the very reverse of that was decided, and that the whole argument of the judge proceeds on the supposition that the variance was material; else why so much effort to show that the notice served, when taken in connection with certain accessory facts, conveyed to the minds of the defendants when received by them, information that the identical note in question had been dishonored. If the notice described the note correctly, it was perfectly immaterial whether it did or did not convey to the minds of the defendants, or either of them, when received, information that the identical note in question had been dishonored. Why, also, the statement that "it was said on the argument, that the notice, to be effectual, must be perfect on its face, to carry the information to the endorser of the non-payment of the note, and that it could not be aided by accessory facts," and the reference to the cases of Shelton v. Braithwaite, 7 Mees. & Welsby, 436, and Stockham v. Parr, 11 Id., 809, as

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