Albany, December, 1840.-New-York Insurance Company v. Roulet.

The claims being the property of individuals, were assignable, and who eventually would be legally entitled to the money the government could not know, unless it was empowered to call the parties and witnesses before some tribunal, and determine the question in a legal form.

But in what tribunal could the conflicting rights of these claimants be settled? The claimants are citizens of this state. Congress could not authorize commissioners to form such a tribunal, nor could they institute a new tribunal with sufficient powers to adjudicate the matter in controversy between these parties. By sec. 1, of the second article of the constitution, the judicial power of the United States shall be vested in one supreme court, and

such inferior courts as congress may from time to time ordain [516] and establish. But the judicial power of these forums do not extend to controversies between citizens of the same state, except where they claim lands under grants of different states. See 2d article, Const. U. States. Congress therefore could not constitute a tribunal with exclusive jurisdiction over the rights of these parties. It is manifest therefore to my mind, that no tribunal has passed upon these claims, which had the power to render a judgment final and conclusive between the parties. Nothing short of an absolute agreement between the parties could constitute the commissioners arbitrators, so as to make their award final and conclusive, as to the conflicting claims of the parties. But it is not pretended any such agreement has been consummated between them. As I come to the conclusion therefore that the award is not final and ccnclusive between the parties in determining their rights; the next question is, what are the equities in the bill as admitted by the demurrer ?

It is difficult to conceive from the statements in the bill how the insurance company could make out a claim before the commissioners that should entitle them to an award for the $5000. True it is, the company had paid that sum, but under what circumstances? They had insured to the amount of $15,000 on the cargo of the vessel, and in consequence of the loss of the cargo, the owners had a claim against them for that amount, and in order to buy off their liability and to free and discharge themselves from the payment of the $15,000, in consequence of the loss, they agree to pay and do pay $5000, without taking any interest whatever in the spes recuperandi of the property lost-and even refuse to hold such interest. It appears to me, therefore, they relinquish all claim whatever to the money, or any portion of it paid on account of the loss of the cargo. I am aware that an abandonment is not necessary to give the insured a right to receive the proceeds of claims arising from losses which have been paid. A mere payment of a loss, whether partial or total, gives the insurers an equitable title to what may be afterwards recovered from other parties on account [517] of the loss. 1 Phillips on Ins. 464. But it is on the principle

Albany, December, 1840.-New-York Insurance Co. v. Roulet.

that the insurer is considered as purchasing the property as far as he pays or is liable to pay for the loss. 1 Phil. on Ins. 465. And had the insurers in this case paid the amount they had agreed to pay by the terms of their policy, they would have been so considered, and entitled to their portion of the amount paid by the French government for the loss, whether the owners abandoned or not. But how could they retain the situation which their policy gave them as presumptive purchasers, without complying with the terms of the policy? Will it be said the owners had a right to consent to a modification, and still permit them to occupy the same standing in point of interest? Undoubtedly they had. But did they do so? The owner consented to relinquish the payment of $15,000 for $5,000, and offered to the insurers an abandonment of the cargo, which offer was declined on the part of the underwriters. How, therefore, could this negotiation which cancelled the policy, give the insurers any interest in the property? The law cannot imply an interest against the absolute refusal of the party to take such interest, nor can a court of equity help out such a claim.

The doctrine laid down in Gracie v. N. Y. Ins. Co. 8 Johns. R. 244, that the assured is never obliged to abandon, and if he does not, he is always entitled to recover to the extent of his loss, I consider entirely correct. But if the whole amount of loss is recovered by the assured and they have received a portion of the loss from the underwriters of a policy, without any relinquishment of the spes recuperandi by such underwriters, the portion of the amount of the loss thus received is received in trust for the underwriters. In Randall v. Cochran, 1 Vesey, sen. 98, the commissioners appointed to adjust the losses sustained by unjust captures, would not suffer the insurers to make claim to part of the prizes, but the owners only, although they were satisfied for their loss by the insurers. The lord chancellor said he "was of the opinion that the plaintiffs had the plainest equity that could be. The

person originally sustaining the loss was the owner; but after [518] *satisfaction made to him the insurer. No doubt but from that

time, as to the goods themselves, if restored in specie, or compensation made for them, the assured stands as a trustee for the insurer, in proportion for what he paid." And on the same principle, if the insurance company have received the $5000, which, as the bill states, was a part of the aggregate sum of $50,940 awarded, for the whole loss on the cargo, after having refused to pay the amount of the policy and accept of an abandonment, I see no reason why they have not received the money without any legal or equitable claim whatever, and why they should not be considered as holding it in trust for the owners of the cargo, or their representatives.

It appears to me, this is one of those cases in which the insurance com pany cannot conscientiously hold the $5000 received-having absolutely de

says:

Albany, December, 1840.-New-York Insurance Co. v. Roulet.

clined to pay the amount of their policy and accept of the abandonment; and if so, a court of equity may entertain jurisdiction. Mr. Justice Story, "One of the most common cases in which a court of equity acts upon the ground of implied trusts, in invitum is, where a party has received money which he cannot conscientiously hold from another party." 2 Story's Eq. 501. The receipt of money under such circumstances, in equity, raises an implied trust. 2 Fonbl. Eq. Book 2, ch. 1, § 1, note b. 2 Story's Eq. 501, 502. It is true that courts of law in the action for money had and received, have now jurisdiction of most of this class of cases, and furnish an adequate remedy when sufficient facts can be proved without calling upon the defendant to disclose them. 2 Story's Eq. 502 and cases there cited. In Law v. Thorndike, 20 Pick. R. 320, the bill which was filed under this same French treaty was dismissed, on the ground that the plaintiff had an ample remedy at law in an action for money had and received, if he was entitled to recover. That case, however, was put upon the ground, that it was unnecessary for the plaintiff to come into the court for a discovery of facts. The court say, "the plaintiff has no need to come into a court of equity for a discovery. The facts upon which the right is claimed are all susceptible of "proof. The defendant standing in a repre- [519] seentative character, cannot be presumed to be personally acquainted with any material facts within his own knowledge, requiring a discovery. But it is not so in the case under review. The appellants against whom the claim is made are the original parties, and the bill calls upon them to answer under oath the allegations in the bill for the purpose of affording the necessary evidence; and also calls upon them to discover the amount paid to them upon the certificate issued. It appears to me, under such circumstances, we are not at liberty to infer that the party could make the necessary proof to recover at law, in an action for money had and received, and on that ground to say the bill should have been dismissed. I am for affirming the decree of the chancellor in overruling the demurrer.

On the question being put, Shall this decree be reversed? All the members of the court present, who had heard the argument, answered in the negative. Whereupon the decree of the chancellor was AFFIRMED.

*THE PEOPLE vs. WHITE.*

[ *520 ]

Where in an indictment for murder the crime is charged to have been committed with a premeditated design to effect the death of the person killed, the premeditated design or express malice must be proved, or the prisoner cannot be convicted, although the act be also charged to have

*Decided 28th December, 1840.

Albany, December, 1840.-The People v. White.

been done with malice aforethought; the description of the character of the crime, viz. its perpetration with a premeditated design, cannot be rejected as surplusage.

Where a judge, in his charge on the trial of a criminal case, after alluding to the benefit of good character to the accused in a doubtful case, called the attention of the jury to the absence of such proof in the case before them, it was held that he had erred, and a new trial was granted.

From both these propositions the CHANCELLOR dissented.*

THE prisoner was convicted in July, 1839, at the New-York oyer and terminer, of the murder of one Peter Fitzpatrick. The first count of the indictment charged, that the prisoner, on the 13th of February, 1839, with force and arms, &c. at the first ward of the city of New-York, in and upon Fitzpatrick, feloniously, wilfully and of his malice aforethought, and from a premeditated design to effect the death of Fitzpatrick, did make an assault;

and with a certain knife, &c. in and upon the groin of Fitzpat[*521]_rick, feloniously, *wilfully and of his malice aforethought and

from a premeditated design to effect his death, did strike and thrust, &c. thereby giving him a mortal wound, of which he instantly died. The indictment contained a second count charging that the prisoner on, &c. at, &c. feloniously, wilfully and of his malice aforethought, and by an act imminently dangerous to him the said Peter Fitzpatrick, and evincing in

*The above propositions the reporter considers as settled by the decision of the court of erBeside which it was held:

rors.

By the CHANCELLOR and Senators, DIXON, EDWARDS, FURMAN and VERPLANCK, that the second associate judge of the common pleas of New-York may preside in the court of oyer and terminer of that city and county, in the absence of a judge of the supreme court, a circuit judge or the first judge of the county, but cannot act conjointly with either of those officers. Senator WAGER holds that he has no power under any circumstances to preside in that court.

So it was beld by the CHANCELLOR, and Senators DIXON, EDWARDS, FURMAN, Root, VerPLANCK, and WAGER, that the aldermen of the city and county of New-York may preside in the court of oyer and terminer of that city and county: at all events, that their power to do so cannot be collaterally inquired into.

So it was held by the CHANCELLOR, and Senators EDWARDS, VERPLANCK, and WAGER, that a memorandum in pencil, purporting to be the examination of a witness taken on an ante mortem inquisition by a coroner, was in itself inadmissible in evidence for the purpose of impeaching a witness, or as not being duly authenticated. From this opinion Senator FURMAN dissents.

So it was held by the CHANCELLOR and Senator VERPLANCK, that the retiring from the bench by a judge after the commencement and before the termination of a trial, will not affect the validity of the trial, provided a quorum competent to proceed in the trial be left. From this opinion Senator FURMAN dissents.

How far the acts of the judges de facto will be sustained, discussed by the CHANCellor, Mr. Justice BRONSON, and Senators DIXON, FURMAN, ROOT and VERPLANCK; and the right of a party affected to raise on writ of error an objection to the due organization of a court, discussed by the CHANCELLOR and Senator VERPLANCK.

The CHANCELLOR holds in this case, that the court for the correction of errors will listen to an objection appearing on the record, although not urged in the supreme court, if it be of such a character that had it been presented there it could not have been obviated by the opposite party

Albany, December, 1840.-The People v. White.

him the said Ezra White a depraved mind regardless of human life, did make another assault, and with a certain knife, &c. in and upon the right groin of him the said Peter Fitzpatrick, with a depraved mind regardless of human life, feloniously, wilfully and of his malice aforethought did strike, stab and thrust, &c.

At the trial, the counsel for the prisoner took a bill of exceptions, in which it was stated that the cause came on for trial at a court of oyer and terminer, held in and for the city and county of New-York, on the 10th July, 1839, before the Hon. Ogden Edwards, circuit judge for the first circuit, William Inglis, one of the associate judges of the court of common pleas for the city and county of New-York, appointed under and by virtue of the act of 1st April, 1839, entitled "an act to repeal the seventh section of the act relating to the court of common pleas for the city, &c. and to authorize the appointment of an additional judge;" and [522] Egbert Benson and Elijah F. Purdy, aldermen, &c. Under this organization, Judge Edwards presiding, a jury was empannelled, a tales directed, challenges decided, witnesses examined, and the opinion of the court pronounced by Judge Edwards on several questions that had arisen as to the admissibility or rejection of testimony, without any intimation that he intended to abandon the bench during the progress of the trial; he then withdrew and continued absent during the remainder of the trial. Judge Inglis and the two aldermen remained, and they presiding, the trial was continued. The indictment against the prisoner was found at the New-York general ses sions, in which the recorder and two of the aldermen of the city presided.

William H. Wright, a witness for the people, testified that he knew White; that he, the witness, was at the house of one Lawrence Gaffney (where there was a house-warming) several times in the course of the night in which the homicide was committed; and gave evidence tending materially to fix the offence upon the prisoner. Wright had been examined before the police, and his deposition taken there was read in evidence by the counsel for the prisoner. He there stated that he did not know White's name at the time; but now knew it. He was now cross-examined as to his deposition before the police, and said: "I did not express any doubt about who did the act. I did not then recollect his name." He admitted that he had been examin. ed before the coroner, on the occasion of the ante-mortem inquest on Edward Dennon, who, as it now appeared, was wounded by the prisoner in the same affray. The inquest was taken February 13th, and was admitted by the district attorney, to have been duly filed by the coroner. There was an endorsement on it in pencil in these words: "Witnesses. Wm. H. Wright. Is a watchman. About 3 o'clock this morning, came along, &c. and found they were quarrelling, &c. and told the young men to go away. One of them came up and jerked the door open, and saw him make a motion to