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thirty years' date proved themselves; and that it added to its
authenticity, coming from among the papers of the company,
and being in the handwriting of their secretary; and a case is
cited by Lord Eenyon, where Lord Mansfield declared that he
would admit a bond of above thirty years' standing, if proved to
have been found among the papers of the deceased. The an-
cient rule required the lapse of sixty years before a deed proved
itself; this rule has been narrowed to thirty years, and as by
our statute of limitations, the possession of land for twenty-
five years gives a title against ail the world, I consider a deed
of more than thirty years' standing, and where possession has
been held under it for twenty-five years, good evidence, without
proving its execution.

The devise is to the testator's six children, and their heirs
and assigns for ever, as tenants in common. But if any one or
more of the children should die before they arrive to full age,
or without lawful issue, then his part is to devolve upon, and
be equally divided among the rest of the testator's surviving
children, and to their heirs and assigns for ever. Matthew
died without issue, after the death of four other of the devisees
with issue, leaving Brachie the only surviving child of the tes-
tator.

Though the real and personal estate are both given in the
same manner, it would be violating the plain intention of the
testator to consider this a void limitation over, because the per-
sonal estate might admit of other constructions; and since the
case of Fosdick v. Cornell, ante, 340, it cannot be contended that
the devise means an indefinite failure of issue, but only a failure
of issue living at the death of the first taker. That case is an
authority for saying that the devise here created a good limita-
tion over, by way of executory devise, depending on the con-
tingency of any of the devisees dying without leaving issue at
the time of their death.

The grandchildren cannot be considered as the surviving
children, within the intention of the testator. The plain lan-
guage of the limitation would be violated by giving it such a
construction, and, indeed, it was not pressed.

In my opinion, Brachie took the whole share of Matthew on
his dying without issue, and the plaintiff is entitled to judg-
ment.



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488 Jackson v. Blanshan. [New York,

Kent, C. J. The first question arising in this case is as to
the admission of the will of Matthys Blanshan. The acts and
declarations of the children might perhaps have been sufficient
ground for presuming a will dividing the estate, according to
the distribution which actually took place, had there not been
positive proof behind of the existence of the will. Presump-
tions are only allowed when positive proof is wanting; but here
the lessors of the plaintiff admitted that they had in their hands
the will itself. They were then bound to produce it, and sup-
port its genuineness by such proof as the nature of the case
afforded. The highest and best evidence was the production
of one or more of the subscribing witnesses to the will, if they
were living, and within the jurisdiction of the court. It was
proved that one of the subscribing witnesses was alive, and
resided in Duchess county, and no reason wad given why he
was not produced. This omission was a fatal negligence on the
part of the plaintiff, unless the admission of the will can be
supported on the footing of an ancient deed, which proves it-
self. Here, I think, also the lessors of the plaintiff have failed.
It is not proper to compute the will from its date, but only
from the time that possession took place under it. It is the
accompanying possession alone which establishes the presump-
tion of authenticity in an ancient deed: Gilb. 89; Peake, 72, 73;
Fleta, 426; 1 Inst. 6; 1 Bol. Bep. 182; Skinner, 239; 2 Mod.
323; 2 T. B. 466; 1 Black. Bep. 532. In one of the cases re-
ferred to, Lord Coke says that possession must have gone all
the time, according to the deed, before a feoffment of forty
years' standing can be admitted without proof of livery. Where
possession fails, the presumption in its favor fails also. The
length of the date will not help the deed; for if that was suffi-
cient, a knave would have nothing to do but to forge a deed
with a very ancient date. The death of the testator could not
have exceeded twenty-six or twenty-seven years, before the com-
mencement of the suit, and the time of the possession under
the will fell short of the lowest period which has been required
to establish an ancient deed.

Perhaps thirty years may be deemed unreasonably long,
since it reaches beyond the limitation now established in a writ
of right. But it is to be observed that the rule requiring thirty
years as the test of an ancient deed, is an old and well settled
rule of evidence; and that it has been applied to a variety of
instruments, besides conveyances of real estate, such as bonds,
certificates of settlement and the like. It may, therefore, well



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Aug. 1808.] . Jackson v. Blanshak. 489

be questioned whether greater inconveniences would not be felt
from a departure from that rule, than from adhering to it, in
the present instance.

On this ground a judgment xrf nonsuit ought to be directed,
according to the stipulation in the case. But as we have the
will before us, and the counsel have argued on the merits of the
controversy, arising on the construction of the will, it may
probably be convenient to the parties, and save further litiga-
tion to have the opinion of the court on the will.

The will devises the real estate to the six children in fee, of
whom Brachie, one of the lessors, was the youngest, and the
only survivor; it then adds the following devise over: "But if
any one or more of my said children should die before they ar-
rived at full age, or without lawful issue, that then his or her
share should devolve upon, and be equally divided among the
rest of my surviving children." This devise over is good by
way of executory devise, and not too remote; for the construc-
tion is well settled that the words " without lawful issue" mean
issue living at the time of his death. The case of Fosdick v.
CorneiL 1 Johns. 440, was on a devise to four sons and a
dauglntf, and that if any of them should die without heirs male
of their bodies, their share should go to the survivors. The
court reviewed the leading authorities, and held that the devise
over was a good executory devise, and that the true construc-
tion was a devise over, to take effect on failure of male issue,
during the life of the first taker. The case of Eanbury v.
CoclceriM, 1 Bol. Abr. 835, is an ancient case, quite analogous,
in favor of the validity of this executory devise. The devise
there was to the two sons in fee, with a proviso that if either
died before they should be married, or before they should attain
the age of twenty-one years, and without issue of their bodies,
then his share should go to the survivor. In the two cases of
Porter v. Bradley, and Roe v. Jeffery, 3 T. B. 143; 7 Id. 689,
Lord Kenyon supported this established construction in a very
forcible manner, and the present case cannot be distinguished
in principle from those in which this rule of law is settled be-
yond controversy. The lessors of the plaintiff would, therefore,
be entitled to recover on the merits of the case, and it is with
regret that I am obliged to turn them round to a new action;
but according to the stipulation in the case there must be a
judgment of nonsuit.

Yah Ness, J., was of the same opinion.



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490 Griswold v. N. Y. Insurance Go. [New York,

Thompson and Yates, JJ., not having heard the argument in
the cause, gave no opinion.
Judgment of nonsuit.



The authority of this case is well sustained on the point as to an execu-
tory devise: See Wilkes v. Lion, 2 Cow. 394; Paterson v. BUis, 11 Wend.
292; Boone v. Phillips, 24 N. Y. 469; Guernsey v. Guernsey, 35 Id. 271; 2
Washburne on Real Prop. 684; 3 Id. 527; Richardson v. Noyes, ante, 24;
holding a similar role. On the question of a will or deed thirty years old
being admissible in evidence, without proof of execution, its authority has
been doubted in Jackson v. Blanehan, 6 Johns. 54; WUlson v. Betts, 4 Demo,
213; Hewlett v. Cock, 7 Wend. 371, 374. But in Jackson v. Davis, 5 Cow.
127; Jackson v. Christ/man, 4 Wend. 282, its authority on this point is recog-
nized.

In Enders v. Sternbergh, 1 Eeyes, 264, it is held that a deed appearing to
be of the age of thirty years may be given in evidence without proof of
execution, if such an account of it be given as may under the circum-
stances be reasonably expected; and such as affords the presumption that
it is genuine. The correct doctrine held by the New York courts is
stated by Selden, J., in Clark v. Owens, 18 N Y. 437. He says: " In Eng-
land, if the deed appears to have been in existence for thirty years, and
during that time to have been in the proper custody, it is held to be ad*
missible without further proof. In this state, however, something more
has been generally required. There must be not only direct prooflf^evid-
ence warranting the inference that the deed has been in existence for thirty
years, but something in addition to establish the authenticity of the in-
strument If possession has accompanied the deed for that length of time,
. that is enough. If not, other circumstances may be resortecl to for the pur-
pose of raising the necessary presumption in favor of the deed. " This doc-
trine is also supported by the following: Carter v. Cftandron, 21 Ala. 72;
BeaU v. Dealing, 7 Ala. 1*24; Doe v. Roe, 31 Ga. 593; Hedger v. Ward, 15
B. Hon. 106.



Griswold v. New York Insurance Co.

[8 JomnoM, 821.]

Right to Abandon.— A policy was made on freight from New York to
Barcelona. The vessel, while proceeding out of the harbor on the voy-
age insured was stranded, and the cargo, consisting of flour, was so
damaged that it would not be worth the freight to carry it to its place
of destination. Information was given to the insurers at the time of
the accident, and two days afterwards the insured abandoned as for a
total loss. The vessel was repaired in seventeen days, enabling her to
prosecute the voyage, at an expense of one hundred and fifty dollars.
The cargo, which was insured by others, had also been abandoned and
accepted by the insurers, and sold at auction at a loss of about twenty-
seven per cent. It was held that the insured on the freight had no
right to abandon, but should have offered to the owners of the cargo
to carry it to its place of destination, so as to entitle them to the
freight



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Aug. 1808.] Gbibwold v. N. Y. Insurance Go. 491

Same.— Where goods are carried to the place of destination and found
damaged so as to he of no value, the owner cannot abandon the goods
for the freight, hut the owner is entitled to his full freight for the trans-
portation of the goods.

Action on a policy of insurance on the freight of the ship
Onlloden, on a voyage " at and from New York to Barcelona,
with liberty to touch at Gibraltar/ 9

On a second trial of this case, a special verdict was found
containing the following facts: The vessel in going out of New
York harbor, on the voyage insured, stranded, thereby so dam-
aging the greater part of the cargo, which consisted of flour,
that it was totally unfit to be reshipped, and would have been
worth nothing at the port of destination. On the day of the
accident; March 3, 1804, plaintiffs notified defendants, and on
the fifth abandoned. In their letter of the fifth to the defend-
ants, the plaintiffs say: " If you are of opinion that the cargo
is bound to pay any freight, it will be for your interest to give
directions that the cargo be not delivered to the shippers or un-
derwriters on the cargo until the freight may be settled. There
is a sloop with some flour on board taken from the ship; it is
necessary that some orders should be given for discharging the
flour. On the tenth of March, defendants informed plaintiffs
that their taking charge of the ship should not prejudice any
claim they had on the defendant for freight. The voyage was
broken up in consequence of the disaster, and the vessel hav-
ing been afterwards repaired, at an expense of one hundred
and fifty dollars, was sold by. the plaintiffs for their own bene-
fit. The cargo was delivered to the insurers thereon; Kermit,
the agent of the defendants, knowing of such delivery and
pairing no objection.

Wells and Eadcliff, for the plaintiffs, contended that the facts
showed that they were entitled to abandon; that it made no
difference whether the goods were totally lost, or so damaged
as to be worth nothing at their destination; that* plaintiffs had
cautioned defendants as to the delivery of the cargo to the in-
surers thereon, until the freight had been secured; and defend-
ants, through their agent, had acquiesced in such delivery.
Moreover, the owners of the cargo might have abandoned it to
the plaintiffs for the freight at Barcelona: Lukev. Lyde, 2 Burr.
886; Lutwidge v. Grey, Abbott, 234, 239; Baxllie v. Moudigliani,
Park, 53.

Hoffman and Harison, for the defendants, urged that noth-



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492 Obiswold v. N. Y. Insubangh Go. [New York,

ing would prevent a ship from earning freight but an incapacity
to prosecute the voyage, or the absolute loss of the cargo by
the perils of the sea; that Hermit's authority did not extend to
binding the corporation, and that if the owners of the cargo
might have abandoned it at Barcelona for the freight, it would
then have been substituted for the payment of freight, and
plaintiffs would have had no action for a loss of freight.

By Court, Kbkt, 0. J. The only material difference between
the special verdict before us, and the case, which was made
upon the former trial of this cause, is respecting the extent of
the damage to the flour. It is now found that all the flour, ex-
cept between one hundred and two hundred barrels, became
damaged, and wholly unfic to be reshipped for that or any other
voyage, and that if the damaged flour had been carried to Bar*
celona, it would have been worth nothing there, and would have
injured* the sound flour, and that no prudent person would have
taken the cargo as a gift, and carried it, subject to the expense
of the freight.- But it is also found that the whole cargo was
sold at New York, at a loss of only twenty-five or twenty-seven
per cent, which was, of course, more than double the amount
of the freight.

These facts do not appear to vary in any degree the applica-
tion of the principles laid down by the court in the former con-
sideration of this cause. When the plaintiffs abandoned, on
the fifth of March, they had a cargo in charge worth more than
double their freight. The ship was in a condition to be imme-
diately and easily repaired, and in seventeen days she was re-
paired and ready for sea. If the plaintiffs, instead of abandon-
ing to the defendants, had offered to proceed with the cargo,
and the owners of it had refused, they would have made them-
selves liable for the full freight. If the owners had consented,
the plaintiffs would have been bound to proceed, and run the
risk (against which risk the defendants had assured by the
policy) of losing the freight by the loss of the cargo, in the
course of the voyage, or of earning freight by its safe arrival
and delivery at the port of destination. How does it appear
that freight could not have been earned? For the plaintiffs to
abandon without assuming this risk, was unreasonable and in-
admissible. It would, no doubt, have suited very well with
their convenience to have received the full freight for the voy-
age, without ever leaving the port of New York, and to have
employed the time which that voyage would have consumed, in
earning freight on some other. But they cannot be permitted



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Aug. 1808.] Gbiswold v. N. Y. Insurance Co. 493

to enjoy this good fortune, unless they can show clearly that the
freight insured was lost, either by the act of the shipper, or by
the perils of the sea. Whether it would have been wise or fool-
ish in the shipper, to have sent on the flour, in the condition it
was in, was a question not to be put by the plaintiffs. It was
none of their concern. The risk of the value of the cargo at
the port of delivery lay with the owners of the cargo. All that
the plaintiffs had to do, by their contract, was to provide the
means to take on the cargo, by repairing their ship, or procur-
ing another.

But it is said th*t the cargo, if carried on to Barcelona, would
not have been worth the freight. This is the import of the
special verdict. Here, then, the question arises, whether the
plaintiffs would not have had their remedy against the shipper
personally, for any deficiency in the freight, or whether the
owners could discharge themselves completely by abandoning
the damaged cargo to the plaintiffs, after its arrival at Barcelona.

The question has not, hitherto, received any judicial decision
in the English courts; and it has been frequently mentioned in
this court as a point unsettled. We are, therefore, called to
examine the question upon principle, and upon the authority of
the marine law of foreign states.

The contract of affreightment, like other contracts of letting
to hire, binds the shipper personally, and the lien which the
ship-owner has on the goods conveyed, is only an additional
security for the freight. This lien is not incompatible with the
personal responsibility of the shipper, and does not extinguish
it. The consideration for the freight, is the carriage of the
article shipped on board; and the state or condition of the
article at the end of the voyage has nothing to do with the
obligation of the contract. It requires a special agreement to
limit the remedy of the carrier for his hire to the goods con-
veyed. It cannot be deduced from the nature of the under-
taking. The ship-owner performs his engagement when he
carries and delivers the goods. The condition which was to
* precede payment, is then fulfilled. The right to payment then
becomes absolute, and whether we consider the spirit of this
particular contract, or compare it with the common law doc-
trine of carrying for hire, we cannot discover any principle
which makes the carrier an insurer of the goods as to their
soundness, any more than he is of the price in the market to
which they are carried. If he has conducted himself with
fidelity and vigilance in the course of the voyage, he has no



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494 Griswold v. N. T. Insurance Co. [New York,

concern with the diminution of their value. It may impair the
remedy which his lien afforded, but it cannot affect his personal
demand against the shipper. This conclusion appears to be so
natural and just, that I cannot perceive any plausible ground
upon which it has been questioned or denied. The weight of
authority is certainly on this side. The French ordinance of
the marine, tit. du Fret, art. 25, is explicit to the point. This
code is not only very high evidence of what was then the
general usage of trade, but from its comprehensive plan and
masterly execution, it has long been respected as a digest of the
maritime law of all the commercial nations of Europe. Valin,
in his commentary upon this ordinance, calls in question the
equity of the rule; but his reasoning, when we apply it to the
true construction of the contract, is weak and superficial; and
it has been exposed and answered, and the solidity of the rule
vindicated, by a superior and more luminous jurist: Valin,
torn. 1, 670; Pothier,- Charte Partie, No. 69.

But though this question has never been settled at West-
minster Hall, Mr. Abbott, p. 243, says that the assumed right
to abandon deteriorated goods at the port of discharge, is not,
in point of practice, claimed in that country, and his opinion
is evidently in favor of the rule as established in France. We
have, however, the opinion of Lord Mansfield against it, ac-
cording to the report of the case of Luke v. Lyde, and if we
were certain of the accuracy of that part of the report, and that
the observation was intended to apply the very question before
us, we ought to pause even over the dicta of so pre-eminent a
judge. We cannot, however, bend our convictions to a mere
extra-judicial saying, and when this cause was formerly before
us, the weight of this dictum was greatly diminished by the ju-
dicious reflections of one of the judges of this court, who has
since been elevated to the bench of the United States. [Judge
Livingston. ]

The acquiescence of the defendants in the breaking up of the
voyage and the abandonment of the freight, have been urged to
the court as facts better supported by the special verdict than
they were by the case made. There does not, however, appear
any material alteration of the cause in* this respect, and there is
nothing which gives sufficient color for such an inference. The
acts of Eermit, the agent of the defendants, relative to the
delivery of the cargo to the Commercial Insurance Company,
went no further than was requisite to the unloading and repair-
ing of the ship, of which the defendants were also the insurers.



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Aug. 1808.] Beade v. Commercial Ins. Go. 495

Every act is referable to that object. The assent of the de-
fendants ought to have been found as a positive, substantive
fact, if it ever existed. It would be unjust to infer it from acts
capable of a different explanation, and which, at most, were
but equivocal.

The court are, accordingly, of opinion that judgment must be
rendered for the defendants.

Judgment for the defendants.



Reads v. Commercial Insurance Co.

[3 JOHJWOM, 802.]

Deviation. — A vessel was insured from New York to Bordeaux, and had
French passengers on board; and the owners instructed the master to
proceed through the Sound, so as to avoid the risk of detention by British
cruisers then off Sandy Hook. The master accordingly went through
the Sound, instead of going through the Narrows, the ordinary and
least dangerous route for vessels. This was held to be no deviation.

Liability op Insurers to Pay Bottomry Bond.— A vessel being in-
sured from New York to Bordeaux, was consigned, with a part of the
cargo belonging to the owner, to a person at Bordeaux, on whom bills
were drawn to the full amount of the goods and freight The master
applied to the consignee there to make necessary repairs for the return
voyage, and the consignee made an advance of money, taking a bot-
tomry bond for the amount It was held that the insurers, under the
circumstances of the case, were not bound to pay the bottomry bond,
but only for the repairs.

Action on a policy of insurance on the ship Frances Ann, on
a voyage from New York to Bordeaux and back.

The vessel sailed on the voyage insured September 7, 1807,
having on board a number of French passengers, and, pursuant
to the orders of the owners, went through the Sound to avoid
the risk of detention by British cruisers then off Sandy Hook.
The passage through the Narrows was that usually taken by
vessels bound to sea, and was the more convenient; but it was
not shown that leave was ever asked of insurers for vessels to
go through the sound.

The ship having suffered damage at sea, it became necessary to
repair her at Bordeaux, and the master applied to the consignee,
P. Coudere, Jr., who paid for the repairs with his own funds,
and took a bottomry bond from the captain, at his own risk, at
twenty-five per cent., marine interest. The value of that por-
tion of the cargo which belonged to plaintiffs had been coun-
terbalanced by plaintiff*' drafts on London, which Coudere had



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496 Beade v. Commebgial Iks. Go. [New York,

agreed to pay. The master incurred no personal responsibility
in repairing the vessel, except that which arose from his execu-
tion of the bottomry bond.

On the return of the vessel to New York, the defendants re-
fused to take up the bottomry bond; whereupon she was
libeled in the United States district court, and the amount re-
covered, which plaintiffs paid to prevent a sale of the ship.

A verdict was taken for the plaintiffs, subject to the opinion
of the court upon the following questions: 1. Whether there
was a deviation ? 2. Whether the defendants were liable for the
marine interest on the bottomry bond ?

Hopkins, for the plaintiffs, as to the first point, contended



Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 3 → online text (page 53 of 118)