owner some eleven months prior to the issuing of the policy, and there is no evidence of his parting with the ownership. With respect to Flemming's procuring the policy for the benefit of Marcia, the court reflected on the unsatisfactory character of the evidence, and the singularity of Flemming's not being called as a witness for Marcia; and stated that the only testimony on this point was: 1. The mere form of the policy, which showed it was effected for the owner of the goods, whoever he might be; 2. Evidence of Marcia's ownership; 3. That Flemming, when employing counsel to bring the action, stated Marcia to be the owner of the goods and the person for whose use the action should be brought. The court also said that Marcia's subsequent ratification of Flemming's act would be sufficient and might be presumed, if for his benefit; but that the plaintiff could not recover unless he proved "damage to have been done or occasioned to the goods insured while on the voyage, by any of those extraordinary perils or occurrences against which it was the design of the policy to protect him. It is not sufficient that the goods should appear to be in a damaged state when they were landed, to entitle the plaintiff to recover in this action. It ought to appear that the damaged state was occasioned by some extraordinary disaster, which occurred on the voyage; such as a violent storm or hurricane, the effects of which neither human foresight nor efforts could well guard against or prevent." The court then proceeded, in substance, to tell the jury that there was no evidence tending to prove that the goods had been injured by any of the perils against which they were insured; and, therefore, that the plaintiff was not entitled to recover. The jury, nevertheless, found for plaintiff. The defendants moved for a new trial.

J. R. Ingersoll, for the defendants.

Scott and Randall, for the plaintiff.

By Court, KENNEDY, J. The principles laid down in the charge to the jury and the directions given to them on the trial of this cause at nisi prius, are considered by the court in bank correct, excepting that part wherein the jury were advised that there was no evidence whatever given to them, tending to prove that the goods were injured by the perils of the sea insured against. The court are inclined to think that there was evidence of this tendency, though very slight; yet still, however slight it might be, the weight and effect of it were to be referred to the jury, and to be judged of exclusively by them, and not by

the court or the judge trying the cause. The consideration of the weight and effect of it was, therefore, by the direction of the court, improperly withdrawn from the jury. The evidence here alluded to is contained in the protest, admitted in evidence by consent of the parties, and the depositions of the witnesses, taken under commissions at the city of Havana. From this evidence it is conceived the jury might have found that the damage alleged to have been sustained, was occasioned by the perils of the sea on the voyage; and though such conclusion could not have been drawn consistently with the evidence of Captain Levely, the master of the vessel, yet the credit and effect of his testimony was also matter exclusively for the decision of the jury. They, however, would seem from their verdict, either not to have understood the charge in relation to the want of evidence as to this point, or to have disregarded it altogether; most likely the latter. If so, they were clearly wrong, because they were to receive the law from the court; and the court having advised them in respect to the want of evidence as a question of law, they were bound by their respective oaths or affirmations, to have given a verdict according to law and the evidence; an obligation which they could only fulfill by giving a verdict in conformity to the charge of the court, from whom it was their duty to take the law when given. If the rule that the jury shall receive the law from the court, be not strictly adhered to, it is utterly hopeless to expect that the law can be administered alike to all; because jurors, who have never made the law their study, as is almost universally the case with them all, must necessarily be measurably ignorant of it, and therefore will seldom, if ever, decide intricate causes of their heads according to it. The rules of property, as also those of civil conduct, would be misapprehended and disregarded, so that uncertainty and injustice would prevail throughout the state instead of the law, which is certain and fixed, and without a faithful observance of which equal justice can not be administered. Courts, being composed of those, who, from many years' study and practice of the law, are therefore supposed to be intimately acquainted with it, have it assigned to them, as their peculiar province, to determine what the law is in relation to all cases coming before them, and to instruct juries therein, so far as may be requisite to enable the latter to carry the law faithfully into effect, in the discharge of their duties; on the other hand, jurors, from their daily intercourse with mankind, in all the various transactions of human life, which give rise to

litigation, are considered peculiarly well qualified to decide on all matters of fact, according to the evidence as it shall be given to them, under the rules of law, or in other words, under the direction of the court, which is to be considered as being in conformity to the law. Thus courts and juries have their respective spheres assigned to them, within which, each is to act 'and move without encroaching upon the jurisdiction or province of the other. In order, then, that jurors as well as others may know that the direction and decision of the court, on any question of law arising in the course of the trial of an issue of fact, is not to be disregarded; and that a verdict given against such direction, whatever it may be, can never avail anything, unless it be to occasion additional delay, trouble, and expense to the parties, as also to the public, the course of the court is to set the verdict aside, and to order a new trial. And a court, from whose decisions on questions of law, no appeal lies, by writ of error or otherwise, ought never to depart from this course, otherwise the party against whom the verdict is given, loses the benefit of such appeal, and of having the question decided by the appellate court; which would be a most unjust and illegal deprivation of his right.

There is, however, an additional reason, in this case, for doing 80. The circumstances disclosed by the evidence on trial were such, at least, as to excite strong suspicion, that the claim of the plaintiff was unfair, if not tainted with actual fraud. The conviction, however, which rested on my mind, when charging the jury, that there was no evidence given, which went or tended in the slightest degree to prove a loss or injury to the goods of the plaintiff, occasioned by such perils of the sea, in the course of the voyage, as were insured against by the defendants, rendered it unnecessary for me, as otherwise I would have done, to present the case under that aspect to the jury. For this reason alone, I am strongly inclined to believe, that it would be doing nothing more than justice between the parties to afford them an opportunity of having the case reviewed by another jury under a direction from the court that shall cover every view which the jury ought to take of it. The rule for a new trial is therefore made absolute.

Rule absolute.

RATIFICATION IS PRESUMED when one who is informed of a contract made in his name, and by virtue of pretended authority from him, remains silent and does not repudiate the contract: Pitts v. Shubert, 30 Am. Dec. 718 and note. A principal does not ratify a contract by receiving and retaining the

consideration, if he be ignorant of the fact that the consideration was derived from or paid on account of the contract: Pa., Del., and Md. S. N. Co. ▼. Dandridge, 29 Id. 543. Ratification of an unauthorized contract of reinsurance must, according to Alliance M. A. Co. v. Louisiana S. Ins. Co., 28 Id. 117, be made before the loss occurs, or it will be ineffectual. Upon this point the case last cited is probably not reconcilable with the principal case. THE JURY IS THE Sole Judge UPON QUESTIONS OF FACT.-The court can instruct upon matters of law only: Irish v. Smith, 11 Am. Dec. 648; though in some states the judge may give his opinion upon the facts if he, at the same time, informs the jurors that they are the judges of the facts: Gordon v. Little, 11 Id. 632.

JURY IN PROSECUTIONS FOR LIBEL OR SLANDER is judge both of the law and the facts: State v. Lehre, 4 Am. Dec. 596; State v. Allen, 10 Id. 687.

●WHETHER JURY MUST FOLLOW ERRONEOUS INSTRUCTIONS: See note to Armstrong's Ad. v. Keith, 20 Am. Dec. 133.

INSURANCE, FOR WHOM IT MAY CONCERN: See Newson v. Douglass, 16 Am. Dec. 317 and note; Jefferson Ins. Co. v. Cotheal, 22 Id. 567; De Bollè v. Penn. Ins. Co., post.

SEAWORTHINESS. --In contracts of marine insurance, the indemnity afforded is not against the weakness of the thing insured or of the vessel in which it is to be transported. In truth there seems, in all cases, to be an implied contract that the vessel insured or upon which the insured property is shipped, is seaworthy at the commencement of the voyage; and if the vessel within a day or so after sailing, and without any adequate known cause, spring a leak, it will be presumed that she was not seaworthy when she sailed: Prescott v. Union Ins. Co., 30 Am. Dec. 207; S. C., 2 Am. Lead. Cas. 756. “The liability imposed by the contract of insurance is limited to the perils enumerated in the policy, and does not extend to losses occasioned by the inherent weakness or imperfection of the thing insured. Nor, where marine insurance is in question, will the policy of the law permit the owner of the vessel to stipulate against the consequences of his own wrong or negligence, in sending her to sea. in a state unfit for service, or which necessarily endangers the safety of those on board: Wilkie v. Geddes, 3 Dow, 60. Accordingly, the courts of England and of this country concur in holding the seaworthiness of the vessel a condition precedent, without which a marine insurance will be void, whether the defect arises from the default of the owners of the property insured, or from circumstances wholly beyond their control: Draper v. Comm'l Ins. Co., 21 N. Y. 378; Rosenheimer v. American Ins. Co., 33 Mo. 230, 236; Thompson v. Hopper, ✪ El. & Bl. 171, 188. It follows, and the decision in the principal case shows, that when unseaworthiness is established by sufficient evidence, further inquiry becomes superfluous, and the insurers will be discharged, although the loss may have been occasioned by causes independent of the unfitness of the vessel for the voyage. The same result will follow where the insurance is upon the cargo, because the point is of such vital importance that the law has deemed it expedient to lay down an inflexible rule, rendering it the interest of all concerned to see that all the usual and proper precautions are taken to secure the safety and success of the voyage:" 2 Am. Lead Cas., 5th ed., 766, citing Warren v. U. S. Ins. Co., 1 Am. Dec. 164; 2 Johns. Cas. 231; Watson v. Clark, 1 Dow, 336; Taylor v. Lowell, 3 Am. Dec. 141; 3 Mass. 331; Paddock v. The Franklin Ins. Co., 11 Pick. 227; Howard v Orient M. M. Ins. Co., 2 Rob. (N. Y.) 539.

DE BOLLE V. PENNSYLVANIA INSURANCE CO.

14 WHARTON, 68.]

A COVENANT IS AN AGREEMENT UNDER SEAL, between two or more parties, whose names are therein stated, by which some of them engage with the others, or some of them, that some act has or has not been done, or that it shall or shall not be done.

TO ENTITLE ONE TO MAINTAIN AN ACTION ON A PERSONAL COVENANT, it must appear from the covenant that he is a party thereto, and entitled to the benefit thereof.

UPON A POLICY OF INSURANCE UNDER SEAL TO J. F., 'as well in his own name, as for and in the names of all and every other person and persons to whom the property thereby insured did, might, or should appertain," no person other than J. F. can maintain an action of covenant, unless they proceed in his name.

INTENTION OF PARTY EFFECTING INSURANCE LIMITS THE OPERATION of a policy effected" for whom it may concern;" and no person can recover on such policy without first showing that his interest was intended to be protected by the policy when it was obtained.

RATIFICATION OF A POLICY OF INSURANCE which, when effected, was intended for the benefit of a party, may be made by him even after a loss has occurred.

DISTINCTION BETWEEN THIS CASE and that of Flemming v. Marine Ins. Co., ante, 33, stated; and the facts in this case held to wholly fail to show any authority for effecting the insurance, or that the party effecting it intended it for the benefit of the person now seeking to recover.

COVENANT on a policy of insurance under seal, in which the defendant is described as party of the one part and Joseph Flemming as well in his own name, as for and in the names of all and every other person and persons to whom the property thereby insured did, might, or should appertain," of the other part. The property insured was one box of jewelry" on board the Nueva Eloisa, on voyage from Philadelphia to Havana. The insurance was stated to have been made by Flemming as plaintiff's agent. Plea non infregerunt conventionem, with leave to give special matter in evidence. The material facts and the charge of the court sufficiently appear from the opinion. Judgment for defendants. Plaintiff moved for a new trial.

C. and J. R. Ingersoll, for the motion.

Scott and Randall, contra.

By Court, KENNEDY, J. Upon the trial of this cause, before Mr. Justice Sergeant, the counsel for the defendants interposed two objections to the recovery of the plaintiff: first that the policy of insurance, given in evidence, being executed under the seal of the defendants, at the instance and in the name of Josepù