Practical Points.-Insurance without Insurable Interest. was brought, the damage which was at | intended to be secured by the policy. first supposed to result from the death of Mr. Pitt, was wholly obviated by the payment of the debt, the foundation of the action on the insurance fails. And it is no objection to this answer that the funds out of which the debt was paid, did not originally belong to the executors as part of the assets of the deceased; for though it were derived aliunde, the debt was equally satisfied thereout, the plaintiff therefore, has no subsisting cause of action; and a verdict must be entered for the defendants." There must, therefore, not only be an existing insurable interest at the time of effecting the policy, but likewise at the date of the action brought for recovering under the insurance. If this were not so, policies of insurance, which are favorites of the law would degenerate into wagers, which the law generally endeavors to repudiate and repress. The plaintiff having administered to his wife, filed his bill to redeem the annuity, charged with the amount he received on the policy, after, of course, allowing him the premiums and expenses paid upon it. And there is no doubt that the husband was entitled to file his bill, for upon the death of his wife, his right to the annuity became absolute. If the wife, on the contrary, had survived her husband, the assignment would have gone for nothing; because an assignment of a chose in action not reduced into possession, can have no effect as against the wife's survivorship. The danger, therefore, to be apprehended by the defendant when he insured the life of the wife, was in fact, not, her death but her chance of survivorship; for the best thing that could happen to him was her death; inasmuch as by her death the right to the annuity, subject to the mortgage, would have instantly become abso But what shall be said when the con-lute in his debtor, the husband. This verse of the case of Godsall v. Boldero arises? Suppose the insurance company to have paid the sum secured by the policy, is the original debt thereby discharged? This is not altogether an imaginary case, for something of the sort actually happened, and has very recently been made the subject of adjudication by Vice Chancellor Wigram. The case we are referring to is that of Henson v. Blackwell, 4 Hare 434, where the facts appeared to be, that Ann Webb, being entitled to an annuity, which had been granted for a term of sixty years, if two persons (the grantors) or the survivor of them should so long live, intermarried with the plaintiff. The annuity was not made the subject of settlement. The plaintiff was indebted to the defendant in the sum of 3007. In this situation, with a view of securing satisfaction of this debt, an assignment by way of mortgage, of the wife's annuity, was executed by the husband and wife to the defendant, who received some payments as they accrued due, in pursuance of this arrangement. In the following year after the execution of this deed of assignment, the defendant, without the privity or knowledge of the husband or wife, insured the life of the wife for 2008. The wife died in February, 1835, survived by her husband; and the insurance office paid the defendant the sum being so, nothing could have been stranger than the course he pursued in insuring her life, except the conduct of the insurance company in paying the amount; for they might have resisted the payment of the sum which the policy purported to secure, on the ground, that the defendant so far from having an interest in preserving the wife's life had actually a manifest pecuniary interest in having her speedily dispatched. The Vice Chancellor was, however, of opinion that the defendant, as a creditor of the husband, had such an insurable interest in the wife's life as entitled him to a guarantee against the consequences of her surviving her husband the plaintiff. This conclusion his Honor arrived at apparently with some hesitation and difficulty, and then he held that, if the insurance had been so framed, the death of the wife would have put an end to the risque, and there would have been no room for any demand on the insurance office any more than there was in the case of Goodsall v. Boldero, where the payment of the money prevented the demand of indemnity from attaching. His Honor then proceeded: "In this case, a person, who is a mere stranger to the contract requires me to decide what that contract is, as between his creditor and the insurance company; and secondly, he says he is Practical Points.-U. S. District Court.-Van Santwood and Redfield v. Boat John B. Cole. The jury having returned a verdict for the defendant, the court granted a new trial without costs; but Held, that the plaintiff was not entitled to judgment non obstante veredicto. Нихley v. Bull, 7 M. & G. 571. PATENT. PLEA OF NON CONCESSIT. entitled to the benefit of that contract, | being left for the name of the drawer,) although he was in fact a perfect stranger without the plaintiff's authority, and the to it. I do not say that there is anything plaintiff by letter to the defendant, repudiin principle which ought to exclude him ated the transaction, but did not return from the right which he claims. If a the bill. stranger goes to a creditor of A. and pays A's debt, there is no reason why A., on being sued for that debt, should not adopt the act of the stranger, and say "You have already received payment in full!" If this be so, (and nothing appears more reasonable,) why should not the plaintiff in the case in hand get credit for the 2007. paid by the insurance company. This his Honor does not very distinctly explain; at all events, the judgment, as re- In case for the infringment of a patent, ported, does not very clearly show the where the effect of the letters patent is set difference. But from the summary con- out semble, that non-concessit is a good tained in the marginal note, we collect, plea: Held, also that a plea alleging that that the result of the case was this, that the the plaintiff falsely represented to the money paid to the defendant by the in- Queen that the invention was an improvesurance company was paid in their own ment,-that her Majesty confiding in such wrong; and that, inasmuch as the defend-representation, made the supposed grant,ant was liable to an action for payment that such representation was false,—and back at the instance of the office, it would that the said supposed invention was not have been inequitable to hold him bound an improvement,-might properly be to give credit for the amount in a question pleaded together with a plea, that "the between him and the plaintiff. The case, invention was of no use to the public," the we must say, is made obscure by omitting, two pleas not being satisfactory the same: or giving imperfectly, the arguments of Held, also, that the first mentioned plea counsel, in order to make way for a judi- was sufficiently described in the abstract cial exposition not distinguished by his as a plea, that the "invention was no imHonor's accustomed perspicuity. provement." Bedells v Massey, 7 M. & G. 630. See 4 M. & G. 995 BILL OF EXCHANGE. JUDGMENT NON OBSTANTE VEREDICTO. IN debt by A. against B., for goods sold, B. pleaded, that before action, C. the agent of A., in that behalf, obtained from B. for and on account of the debt, a bill of exchange accepted by B. payable at a period which had not elapsed, and that C. handed over to A., and A., before action brought, received the same for and on account of the debt, &c. Replication, that C. received the bill without the consent, knowledge, or authority of A., and that afterwards, and before action, A. gave notice thereof to B.; and that afterwards and within a reasonable time, the bill was returned to B by C. joinder, that C received the bill with consent, &c. of A. Re The (so called )bill as taken, (a blank U. S. District Court. [NORTHERN DISTRICT OF NEW-YORK.] Before the Honorable A. CONKLING, D. J. VAN SANTWOOD & REDFIELD V. THE BOAT JOHN B. COLE.-Miller, CLAIMANT. A contract of affreightment for the carriage of mer- Thus a suit in the admiralty may be maintained for the non-performance of a contract for the transportation of flour from the city of Albany to the city of New-York, on the Hudson river, in a boat designed for the navigation of the Erie canal, and usually employed in that business. U. S. District Court.-Van Santwood and Redfield v. Boat John B. Cole. THE circumstances of this case sufficiently to incur extraordinary expense in securing appear in the opinion of the Court. Dodge, for the libellants. Spencer & Kernan for the claimant. CONKLING, D. J.— it. It is for the recovery of the damages thus sustained that this suit is instituted. A day or two after the occurrence of the accident, the boat was taken to Jersey city, where she remained until Spring, when she returned to the Erie canal, whither she was followed by the libellants, who reside in New-York, and was arrested in Schenectady. nest discussion and of great diversity of opinion. It depends upon the construetion to be given to that clause of the constitution which extends the judicial power of the United States "to all cases of admiralty and maritime jurisdiction." This suit is founded on a bill of lading bearing date, November 28th, 1845, at Albany. By it, S. Brower, the master of The first question presented for decision the boat John B. Cole, acknowledged to arises upon the exception taken by the have received on board his boat, in good claimant to the jurisdiction of the Court. order, 650 bbls. of flour which he promised The extent of the admiralty jurisdiction to deliver, in the like good order, to the li- of the courts of the United States, it is well bellants in New-York. This boat was de-known, has been the subject of much earsigned for the navigation of the Erie canal, and, prior to the date of the bill of lading, had usually, and, as far as appears, uniformly been employed in that business. She was of about sixty tons burthen, and was of the description of boats known on the Erie canal under the denomination of It is unnecessary to review the controline boats. It was shown by the evidence versies to which this clause has given rise, not to be an uncommon practice for boats or even to advert to the grounds on which of this description, after arriving at Albany, they have been maintained. The first with cargoes designed for New-York, to thorough examination which the subject be taken in tow, and thus with their car- underwent, was by the late Mr. Justice goes, carried to New-York by one of the Story, in the celebrated case of De Lovio several steam boats employed in towing v. Boil, decided in 1815, and reported in barges and boats for hire, to and fro on the 2 Gallison. In a most elaborate, able, and Hudson; and it was in this manner that learned opinion, he maintained, that nathe Cole performed her voyage to New- tional policy as well as judicial logic reYork in the present instance. Whether, quired the clause of the constitution to be in fact, contracts of affreightment are ever so construed as to embrace all maritime entered into by the owners of line boats contracts, torts and injuries. And under for the carriage of flour or other articles the head of maritime contracts, (with from points on the Erie canal to New- which alone, we are at present concerned,) York, and thus embracing river as well as he included "all contracts, (wheresoever canal navigation, does not appear. In this they may be made or executed, or whatsocase, a large proportion of the flour on ever may be the form of the stipulations,) board the Cole had been brought by her which relate to the navigation, business or to Albany, and then, without being un- commerce of the sea." Among contracts laden, and along with an additional hun- of this description, he expressly enumerdred barrels there taken on board, became ates contracts of affreightment. The docthe subject of the independent contract on trines of this case were zealously and ably which this suit is founded. After the ar- controverted and strenuously resisted by rival of the Cole in New-York, a delay of several of the Judges of the Supreme two days occurred before her cargo could Court, and especially by Mr. Justice Johnbe discharged, and during this period a son. But there is reason to believe, that storm arose, and (in consequence, as the they met, even at the time of their promullibellants allege, "of her insufficiency, or gation, with the assent of a majority of the the want of due and proper care, or other members of that court. They have never fault of the master and the persons having been repudiated, but on the contrary, in charge of her") she became partially filled all the cases depending upon them, which with water, and the flour was thereby much have since been decided in the Supreme damaged, and the libellants were obliged | Court, they have been substantially ad U. S. District Court.-Van Santwood and Redfield v. Boat John B. Cole. hered to. And in the rules of admiralty | Judge Hopkins, in the case of Thackery practice, which have lately been adopted and others v. The Farmer, Gilpins' Rep. by the court, and published in 3 Howard's 524. This case was much relied on by Rep., they may be considered as in effect the counsel for the claimant, and on that affirmed. It is well settled also, that navi- account requires notice. It was a suit in gable waters in which the tide ebbs and rem. for the recovery of wages alleged to flows, stand upon the same footing with be due to the libellants, as mariners, for respect to the admiralty jurisdiction over services performed on the high seas. In contracts, as the high seas: and in the point of fact, the services consisted in case of Peyroux v. Howard, et al., 7 Pe- bringing wood for fuel across the Delaware ters' Rep., 324, it was adjudged, that riv- river to Philadelphia, from Cooper's creek, ers in which the tide occasions a regular in New Jersey, about two miles above the rise and fall of the water, although the city. The question was whether the case current may not be turned back, are to that was cognizable in the admiralty. After extent, tide waters. The libel in this adverting to the great and increasing frecase, does not, as it ought strictly to have quency of applications for admiralty prodone, allege that the Hudson is a river of cess to recover wages for services perthis description. But in the case just cited, formed on board the river craft, in which it was also held, that the Court might take little regard was paid "to the character of judicial notice of the notorious geographi- the use or employment of the vessel"— cal fact of the ebb and flow of the tide in "the common river boats, of every size, a navigable river, and the fact of such ebb having become ships or vessels navigating and flow in the Hudson was moreover ta- the high seas; their daily trips from shore citly admitted on the trial. to shore, voyages on the high seas; and This then, being the case of a contract for the loading and unloading of wood and the transportation on tide water of an im- similar articles for the market, brought portant article of commerce, would seem at from places within a few miles of the city, the first blush, clearly to fall within the ad- for daily wages, being denominated mamiralty jurisdiction. It becomes necessary, rine services, and maritime contracts," the therefore, now to consider the objections learned judge yielding to what he conto the jurisdiction of the court as presented sidered the necessity of the case, underby the counsel for the claimant. These takes to ascertain and lay down some prinobjections are founded upon the supposed ciple to serve as a future guide in his peculiarity of the case, and refer exclu- court as to the limits of the admiralty jusively to the particular character of the risdiction over cases of the like nature boat in question. It is denied that this is with that before him. He expressly states, a maritime contract, because the boat em- however, that he "did not expect to be ployed in its execution was a canal boat; able to draw a clear line, which will deand also, because she was unprovided with cide the place of every case that may ocany independent means of propulsion. It cur, to be within or without the admiralty does not follow, it was argued, because a jurisdiction," and he in reality contents service is performed on the sea or on wa- himself with establishing and endeavoring ters within the ebb and flow of the tide, to illustrate and define the principles to that it is therefore a maritime service. which I have already adverted, and which, Something more is requisite. The con- since the date of this decision, have betract must relate to maritime affairs-to the come familiar, viz., that tide waters are to business of navigation, trade or commerce. be considered as the sea; that the admiNow, certainly, no one at all acquainted ralty jurisdiction touching contracts, dewith the subject will deny this. The ad-pends upon their subject matter, and that miralty jurisdiction as to contracts, de- it embraces those contracts only which are pends not upon the locality, but upon the essentially maritime. The services rensubject matter of the contract. This is a dered by the libellants in the case before settled principle. The only difficulty con- him, consisting, as already stated, in cerning it, consists in its application to bringing wood across the Delaware for cases as they arise. This is sometimes a consumption as fuel, he did not consider very serious and embarassing difficulty. It to be of this character, and so decided. was strongly felt and acknowledged by But 1 do not find a single argument or il U. S. District Court.-Van Sautwood and Redfield v. Boat John B. Cole. lustration in the whole course of his elabo- | of the tide. And on the other hand, if the rate opinion tending to prove that he would have entertained a doubt of his jurisdiction over a case like the present. On the contrary, he refers to cases occurring on the Delaware, identical in principle with this, so far as the nature and objects of the contract are concerned, in which he had exercised jurisdiction without scruple, and still considered it to be unquestionable. Some of these cases are reported in the volume which contains the case on which I have been commenting. It is true that the Cole had been constructed for the purpose of canal transportation, and though her tonnage was equal to that of many sloops employed in the coasting trade, she was not well adapted to maritime navigation. But having, in this instance, been employed in this manner, as the instrument by which a contract in itself strictly maritime in its nature was to be executed, I know of no authority or principle to warrant me in holding her exempt from admiralty process, by reason of her general character as a line boat on the Erie canal. If her subjection to this jurisdiction has been inconvenient to the owner, it is an inconvenience which he has incurred by voluntarily using his boat in a business which falls within the scope of the admiralty jurisdiction. voyage was substantially on inland waters With respect to the remaining objection to the jurisdiction of the court, touching the manner in which the Cole was moved forward on her voyage, it is, as far as I am aware, wholly novel, and I think it is no less untenable. The allegation is that motion having been communicated to this boat by the power of traction, and by means of another self-moving vessel, she was not, in the eye of the maritime law, a ship or vessel subject to the admiralty lien; and it was argued that the lien attached, if at all, to the vessel by which she was towed. In urging this ground of exemption, the counsel dwelt with much emphasis upon the inconveniences and embarrassments which he apprehended would result from the assertion of this form of jurisdiction over boats of this description, on account of the intimate connection there was between the business of canal and of river transportation ; and hypothetical cases were - adduced of contracts for the transportation of merchandise without transhipment, from The objection admits of a ready answer. certain places on the canal to certain places The proposition that the Cole is not a veson the Hudson; and it was asked whether sel, is a mere assumption, to which it is the admiralty jurisdiction was to be exten- believed no judicial tribunal or elementary ded to these cases also. In order to de-writer upon maritime law has ever affortermine the question of jurisdiction in all cases arising ex contractu, the true inquiry as already stated, is whether the contract is substantially maritime. Thus, if the voyage in which the service has been rendered, or stipulated to be rendered, was performed substantially on the sea or on tide waters, it is immaterial that its commencement or termination happened to have been at some place beyond the reach ded the least countenance. In the celebrated case of Gibbons vs. Ogden, 9 Wheat., 1. it was insisted that steamboats were not vessels, because they were not propelled by wind and sails. But the objection was summarily repudiated by the court, on the ground that the law does "not look to the principle by which vessels are moved." lu the case of Thackerey v. The Farmer, already cited, and so much relied on by |