iv Demont, Jackson, ex dem. Lathrop, v. 55 Duane and others, Grant and Denton v. Livingston Destouches v. Peck others v. 96 - 210 Dunham v. Chamberlain Dey v. Murray Duryee v. Orcott Doe, ex dem. Clinton, v. Phelps - 169 Durand, Wait v. 254 Dyer, Morgan and Smith v. - 255 E - 294 - 362 F · 239 - 160 Fontaine v. Columbian Insurance - 29 - 180 Frasier v. Frasier - 263 Freeman v. Adams -225 Adams v. 349 Furman, Beach and Saunders v. 80 115 - 117 G Glen v. Hodges 80 79 Gasherie, People v. 71 Gelston, Ripley and others v. - 201 Goshen Turnpike Comp. v. Hurtin Grant and others v. Duane and others - 126 Giddings, Leonard v. - 355 Griffin, Simpson v. - 181 Gilpin v. Vincent 260 Griswold, N. York Port Wardens v. 76 H Hitchcock, Carpenter v. Hogeboom, Jackson, ex dem. Van - 329 Hopkins, Hurtin v. Hazard, Mechanics' Bank v. 392 v. Fleet 225 Hebron Overseers, Washburn v. 119 Hornbeck v. Westbrook 73 Hemstract v. Youngs - 364 Herrick, Stratton v. - 356 Hotchkiss v. Le Roy and others Hillyer v. Larzelere - 160 Hurtin, Hopkins v. Hinchman, Brown v. Goshen Turnpike Comp. v. 217 J Jackson, ex dem. Schemerhorn, v. 92.265 Murch Horton, v. Roe Stanton, v. De Thompson, v. Vanbeuren, v. 43 - 891 mont 270 Limerick, v. Voor - 129 Livingston, v. Jansen v. Stoutenburgh - 369 Wilsey - 267 Jenner v. Joliffe Weed Newcomb, v. Smith 100 Noble v. Burnell v. wan - 330 Joliffe, Jenner v. 881 Hogeboom Rensselaer, v. Jones, Keith v. - 120 83 Joy, Bowne and Seymour v. Jackson, ex dem. Jadwin, v. - 102 K Kenny's Executors, Cranston v. Radcliff v. United Ins. Company Richmond, Tallmadge v. Ripley and others v. Gelston Post and Russel v. Kimberly and Brace 72 Powers v. Lockwood 70 Prendergast, Lansing v. 259 Pulver, Loomis v. R 277 Roe, Jackson, ex dem. Horton, v. - 159 Root, Beers v. 85 Rose, Killpatrick v. 201 - 121 Rowan, Jackson, ex dem. Ostran- Vos and Lightbourne v. 192 Runkle, People v. 133 - 127 - 244 - 147 CASES ARGUED AND DETERMINED IN THE Supreme Court of Judicature OF THE STATE OF NEW-YORK, IN JANUARY TERM, 1812, IN THE THIRTY-SIXTH YEAR OF OUR INDEPENDENCE. CLARKSON AND OTHERS against THE PHENIX INSU- surance Tonningen, on from to detained or captured, until six months af [* 2 ] mittance or ceed to another THIS was an action on two policies of insurance on goods Policy of in laden on board the ship Governor Gore, Waddle, master, on goods a voyage from New-York to Tonningen; "warranted Amer- New-York ican property, proof to be required here only; also, not to warranted not abandon, if captured, until six months after notice, unless pre- to abandon if viously condemned, nor if refused admittance or turned away, but may proceed to another near open port." *At the trial, the interest of the plaintiffs was admitted, and that the ship and goods were American, and duly document- ter notice, unless previously ed. The ship sailed on the voyage the 21st February, condemned, nor 1810. On the twenty-fourth March she was met by a British if refused adcruiser, who examined her papers and permitted her to pro- turned away, ceed; and was again met by another British cruiser, on the but may prothirty-first March, who permitted her to proceed, after exam- near open ining her papers. She was, afterwards, on the thirty-first port." March, captured by a French privateer and carried into Calais. voyage, The ship and cargo were libelled in the imperial council of vessel boarded by prizes at Paris, under the Berlin and Milan decrees, and the British cruiscaptors demanded a condemnation; 1. Because, since those ers, who, after examining her decrees, the ship had made a voyage to England; 2. Because papers, allowshe had submitted to two visits from English vessels of war; 3. Because the certificates of origin on board were irregular. The captain caused a claim to be put in, by the American captured, consul-general and agent of prizes at Paris, in behalf of the by a French owners. The counsel consulted by the master, were of opin- privateer and ion that the ship and cargo would certainly be condemned, lais. The vesunder the Berlin and Milan decrees; and the American sel and cargo consul-general, by letter, and afterwards, personally, advised in the council During the the was She ed her to pro- on the 31st March, carried into Ca were libelled ALBANY, CLARKSON V. PHOENIX INS. ris. The mas can agent of prizes, American min condemned, un crees, and that the captain to make a compromise with the captors, as, in his January, 1812. opinion, the property would certainly be condemned. The same opinion and advice were also given to the master, by the American minister at Paris. The American consul, at Calais, also advised the captain to compromise with the captors, and save as much as he could. The master being thus adof prizes at Pa- vised by all the persons he consulted, that the property must ter was advis inevitably be condemned, and that he ought to attempt a comed by counsel, by the Ameri promise, made overtures to the captors for that purpose; and consul- to induce them to favorable terms, he represented to them that general and he would prove that the capture was made by the privateer, and by the while under British colors, contrary to the laws of France, ister, that the in consequence of which the proceeds of the prize would be property would taken wholly by the government. A written agreement was certainly be made, on the 25th July, 1810, between the master and der the Berlin the captors, by which the latter stipulated to pay fifty thousand and Milan de francs, provided it should be ratified by the council of prizes, he ought to at- and to be paid out of the proceeds of the sales of the ship and cargo, and the master ceded and abandoned them to the capthe captors. tors. By a private agreement with the captain, the captors were to pay fourteen thousand francs more. The public conpromise, and tract having been ratified by the council of prizes, both sums on being paid were paid to the master. The plaintiffs and defendants both fourth of the refused to receive the money, which amounted to about twenty[*3] five *per cent. on the ship and cargo; and the same remained value of the ready to be paid to whoever should be entitled to receive it. vessel and car. In making this compromise, the master acted entirely with the doned them to knowledge and advice of the American consul-general and The insured agent of prizes; and of the American minister, the former of received advice whom signed the contracts with the captors. The plaintiffs of the capture had no agent or consignee at Calais; and the goods were not May, and gave consigned to the master, nor had he any other authority, in immediate no- relation to them, than what resulted from his being master of the insurers, the ship. tempt a compromise The master made a com about one go, he aban the captors. on the 26th tice thereof to and on the 26th November, It was admitted that the master, who was owner of one made an aban- fourth of the ship, acted throughout in good faith, and in a donment for a manner which he believed to be for the interest of all conThe com- cerned, and without knowledge of any insurance having been promise was made. total loss. made on the was part own 26th July, by Advice of the capture was received by the plaintiffs, on the the master, who 26th May, 1810, and on the same day they gave notice er of the ship, thereof to the defendants, and on the twenty-sixth November, d he acted made an abandonment to them of the property. The defendfor the benefit ants refused to accept the abandonment, supposing themselves of all concern- discharged by the act of the master in ceding the property to the captors, before the plaintiffs had a right to abandon. bona fide, and ed, but without any express authority, and his acts were not A verdict was found for the plaintiffs, subject to the opinion adopted or rati- of the court on a case containing the above facts. It was fied by the in- agreed, that if the court should he of opinion that the plaintiffs held, that the were entitled to recover, the ar unt should be liquidated by sured. It was |