1 F. Cas. 564 | U.S. Circuit Court for the District of Massachusetts | 1833
This case has been argued upon a motion for a new trial, for reasons stated in the written application to the court, upon which I have no more to observe, than that it is not to be taken for granted, that they present a full and accurate view of the whole case, or of the principles of law involved in the charge of the court. They are to be taken merely as suggestions, which, according to the practice of this court, counsel are authorized to make for the purpose of bringing the matter in review before the court. If there has been any material mistake in point of law, prejudicial to the defendants, they are entitled to a new trial to correct it. If, on the other hand, there has been a failure to try the cause upon its fair merits in point of fact, and there has been a clear miscarriage by the jury, the same result will follow.
The first point now insisted upon for a new trial, (for several of those which are stated in the written motion have been waived,) is, that the court permitted certain parts of the deposition of Edwin Bartlett, which were objected to by the defendants, to be read in evidence to the jury. In the direct examination of Bartlett the plaintiff put the following interrogatory: “Did, or did not, the house of Alsop & Go., in the month of March, 1831, inform said Richard Alsop, that they intended to make shipments to him on account of those funds? If so, by what opportunity or vessel?” Upon an objection taken by the defendants to this interrogatory, and the answer to it, at the time of taking the deposition, and now insisted on, upon the ground, that the one asked, and the other stated the contents of written correspondence, which ought to have been produced, as the best evidence, the court sustained the objection, and overruled the interrogatory and answer. In the cross examination the defendants put the following interrogatories: (1.) “What was the nature of the orders of Mr. Alsop to remit funds in your hands? Annex such orders, or state their contents.” (2.) “Had the said Richard Alsop given any orders or instructions for the purchase and shipment of said hides? or were they purchased by the house to be sent to him in payment of the balance due him?” (3.) “Were any letters written by you, or any members of the firm of Alsop & Co., to Mr. Alsop concerning the proposed shipment by the Leonora? If yea, annex copies thereof, or state the contents, as accurately as possible.” These cross interrogatories were fully answered by the witness; and the plaintiff proposed to read these answers to the jury, to which the defendants objected, upon the ground, that they were asked de bene esse only, upon the supposition, that the direct interrogatory and answer might be ruled in as evidence by the court. The court overruled the objection, and admitted these answers in evidence. And this ruling now constitutes the material point of this exception of the defendants.
The argument now is, that the objection was well taken at the trial; that the defendants had a right to ask the questions conditionally; and that the answers could not be admissible evidence against them, unless the objection to the direct interrogatory had been overruled. And it is urgently pressed, that otherwise the defendants' would be put in peril, by being compelled to make an election at the time, when the deposition is taken, whether to rely upon their original objection, or to insist upon the cross interrogatories being answered. This exception is confessedly new in its form and presentation. No authority is adduced in support of it; and it must, therefore, be decided upon principle. I have reflected much upon it, and am perfectly clear, that it has no solid foundation in the law of evidence, as administered in this country or in England. In the first place, there can be no doubt, that generally the answers to cross interrogatories are admissible evidence in favor of the other side. If a party chooses to ask questions, and the answers are unfavorable to him, he cannot insist upon removing them out of the cause; and, if they are in his favor, insist upon them, as evidence. The law knows of no such principle of evidence, and it would, if adopted, be most pernicious in the administration of justice. There is no more reason, that the answer should be excluded, if asked upon the cross examination, than there would be to exclude it upon the direct examination. The plaintiff might with quite as much justice insist, that an answer to a direct interrogatory should not be evidence, because it was to meet some expected evidence on the other side, and happened to be unfavorable to him, as the defendants might insist, that the answers to their cross interrogatories should, under like circumstances, be suppressed. The law recognises no such principle. Each party asks all questions at his peril; and he must take the answers, if
But, in the present case, the foundation, on which the argument rests, does not sustain it. Suppose the direct interrogatory had been originally suppressed, and never answered; could there be a doubt, that the answers to the cross interrogatories would be good evidence, if these interrogatories had been retained in the cause? I think there could be no doubt in such a case, without disturbing the first elements of evidence. Now, in point of fact, the present cross interrogatories were never withdrawn, before the answers were given, or afterwards. They do not on their face purport to be asked in consequence of the direct interrogatory, or the answer to it. They have no reference whatever to that interrogatory or the answer. They are not in their form put de bene esse, or hypothetically. They are not (as they ought to have been, if intended to be so put,) drawn in a form, which would exclude them from the deposition, if the direct interrogatory should be suppressed. They are not, directly or by consequence, attached to or dependent upon it. On the contrary, they are independent, substantive interrogatories, which the defendants had a right to put, whether the direct interrogatory were in or out of the deposition. Suppose the answers had been favorable to the defendants, I should be glad to know, upon what plausible ground the court could now exclude them. Could the court hdve said; You probably intended to put these cross interrogatories, only because the plaintiff had asked the direct interrogatory; and as that is excluded, you shall not have the benefit of your cross examination? Certainly not. The defendants, not having in terms so limited the application of their interrogatories, and not having in terms made them dependent upon the direct interrogatory, could not have been shut out from the evidence of the answers elicited upon their cross examination. And if the defendants could not, how can the court, consistently with any principle, shut them out from the plaintiff? If the answers would be evidence for either party, they must be for both. The competency of the evidence depends upon its nature, and not upon the side, in whose favor it makes, after it is introduced. Judicially, it is impossible for me to say, that the defendants did ask these interrogatories solely on account of the direct interrogatory. They are perfectly pertinent to the cause, if that be struck out; and indeed, in my humble judgment, of just such a nature, as ought to have been asked, not de bene esse, but absolutely, to eviscerate the very truth upon a point important to the defence. But it is sufficient for me to say, that the | cross interrogatories, not being in fact made | in the record dependent upon the direct interrogatory, they stand, like all other cross interrogatories, upon the general principles of evidence. There is no peril or mischief to the party in this result. If he chooses, he may. make his cross interrogatories dependent; and then, whether favorable or unfavorable, the answers follow the fate of the direct interrogatory. And I cannot but think, that a different decision in this case would exceedingly perplex and impair the due administration of justice. It would enable a party to ask all sorts of questions in a general shape, relative to any matters in any antecedent objectionable interrogatory, and then to use them as evidence, if in his favor; and if otherwise, to exclude them from the use of his adversary. It would compel the court to search out the motives of all the cross interrogatories, and conjecture their object, instead of acting upon their terms and import. If a party, by cross examination of an incompetent witness on the general merits, after his incompetency is known, makes him a good witness, a for-tiori a party asking a competent witness a general independent question, makes him a witness to that point.
The next point is, that the court instructed the jury, that the representation made by the plaintiff to the defendants was sufficient to put them upon inquiry as to the time of the arrival of the Benezet, and that having other means to inform themselves, they were bound to make use of those means, if they thought the fact material; and that by omitting to do so, and underwriting the policy, they waived the right to receive information. Now, in order to understand the proper bearing of this exception, which does not fully and correctly state the charge of the court, it will be necessary to state some of the facts and proceedings at the trial, and the charge of the court upon this particular point. The policy was procured to be underwritten through the instrumentality of Mr. Cook, an insurance broker, who at the time of procuring it showed the underwriters a copy of his letter of instructions, and said he knew nothing more. It was in these words: “Zebedee Cook, Jr., Richard Alsop of Philadelphia. $10,000 on profits on merchandise on board the brig Leonora, (Weigh-mar master,) at and from Callao to Baltimore, free of average and salvage; and the policy, in the case of loss, to be the only proof of interest required. The Leonora sailed about the 12th of April, supposed direct for Baltimore. The ship Alfred sailed, ostensibly for New York direct, some days before the Leonora, and has not yet arrived.
Then, as to the first inquiry; Was there any misrepresentation, as to the fact of the Benezet’s arrival? The words of the paper of instruction are: “The Benezet arrived at New Bedford, sailed after the Leonora.” The argument insists, that the meaning is, that the Benezet has recently arrived; and it is this recency of arrival, that constitutes the very gist of the misrepresentation; for unless it is contained in the instructions, directly or by implication, so as to lead the underwriters to that conclusion, as a matter of affirmation by the plaintiff, the objection is gone. Now, it is most material to state, that there is no such word as “re-eently” in the paper of instructions. The words are not, “The Benezet, recently arrived at New Bedford, sailed,” &e.; but “The Benezet arrived at New Bedford, sailed,” &c. So that there is no pretence of an express averment of the recency of her arrival. Is it implied in the language? I cannot say, that it is. She had actually arrived; and it is quite consistent with the other parts of the paper, that it should intend no more than to refer to the fact of her arrival, as one either actually or presumptively within the knowledge of the underwriters; and that it was introduced, not for the purpose of referring to the true time of her arrival, but for another fact, which might not be as weE known to the underwriters, namely, that she sailed after the Leonora. It ought to be a very strong case, which should induce either a court or a jury to interpolate a word in a sentence, which is not necessary to make it sensible, or which is not fairly and clearly impUed by the nature of the terms used. It should also be considered, that the plaintiff is resident in Philadelphia; and New Bedford is in the immediate neighborhood of Boston, and there is a daily mail between these latter places, and a daily report in the newspapers of both places (as the evidence shows) of aU arrivals at the respective ports; and that it is usual for the presidents of insurance offices to examine the newspapers for this purpose. And in point of fact, the daily newspaper, taken by the defendants, did contain the very information, as to the time of the arrival of the Benezet. What could be more natural, then, for a person desirous of procuring insurance in Boston, than to presume the underwriters acquainted with arrivals at Boston, and the neighboring ports, it being usual to publish such facts, and for the underwriters to take notice of them? Under such circumstances, I put it to the jury to say, whether the plaintiff-. did intend to affirm any thing by implication as to the arrival of the Benezet being recent, or whether he only referred to the fact of her arrival, as being within the knowledge or means of knowledge of the underwriters, as weE as of himself, for the purpose of stating that the Benezet saüed after the Leonora. If they should think that there was an averment, that the Benezet had recently arrived, and that the fact thus stated was material to the risk, then their verdict should be for the defendants; if otherwise, then there had been no misrepresentation affecting the poEcy.
Then, as to the concealment, the charge •was to this effect: The concealment, as had been already stated, must be of a material fact, peculiarly within the knowledge of the party, and in respect to which the other party may be presumed to trust him; and not of such public facts as may be presumed to be equaEy open to both parties. Now, there was clearly no concealment of
Such was the substance of the charge on this point; and upon mature deliberation, I adhere to it No case has been cited, which propounds a different doctrine; and it seems to me, that it stands confirmed by the general principles of the adjudged cases on the subject of notice, and especially by those, which have been decided in regard to concealment in cases of policies. The doctrine in Fort v. Lee, 3 Taunt 381, is far more strong; for there it was held, that it was not necessary for the assured to discover to the underwriter, whether a vessel, sought to be insured at and from a port, had sailed or not. The court said: If the underwriter had wanted to know the fact, he ought to have inquired. I am, therefore, of opinion, that this exception ought to be overruled.
The next exception is, that the court instructed the jury, that there could not be a gaming policy within the meaning of the law of Massachusetts, unless both parties intended it as such. The charge of the court upon this point was to the following effect: — There cannot, strictly and abstractly speaking, be a gaming policy or other gaming contract under our law, unless both parties concur in the object. For if one intends to game, and the other does not, they do not, strictly speaking, come ad idem; and to form any contract, there must be a deliberate assent by both parties to the same thing. In the present case it is agreed on both sides, that the defendants never intended to enter into a gaming policy; and therefore it seems to me, that in a strict sense it cannot be treated as a gaming contract. But I do not think this is of any real importance in the cause, because if, as is conceded, the defendants did intend only to- underwrite a policy substantially on interest, and they have been misled by the plaintiff to underwrite one not upon interest, it is in construction of law a fraud upon them, and the policy is void. On the other hand, if both parties intended bona fide a policy on interest, and the plaintiff had a substantial interest on board, and the overvaluation was bona fide made, and not with
Was the court wrong, then, in saying, that the policy was not a gaming policy, in a strict sense, under the law of Massachusetts ? It is clear, that the law of this state must govern in this case; and I confess, that I am unable to perceive any error in this part of the charge. To form a contract, both parties must concur in ,the same purpose. A gaming contract ex vi terminorum is a contract, in which both parties agree to game. And here both parties never intended to game. This is admitted. How, then, could the court hold a different language, without overturning the first element of all contracts, mutual consent in the same thing?
It is true, that, in a loose- sense, a policy underwritten knowingly by both parties without interest, is among us sometimes spoken of, both at the bar and on the bench, as a gaming contract But this is not perfectly correct in legal language. It is more properly called a wager policy, at least in the sense of our law, where the word “gaming” has a limited and distinctive sense in the statute book.
If we pass to the jurisprudence of England, we shall find the same distinctive appellation applied by elementary writers, by the bar, and by the bench, to characterize policies without interest.
X do not mean to deny, that policies not -on interest are sometimes called gaming policies, though they are more generally called wagering policies.
Now, in the present case, it is (as I have already stated) admitted, that the defendants meant to enter into a policy on interest, and not into a wager policy. They did not intend to wager or game, but to insure substantive interests. Whatever, then-, the terms used are, the policy is to be deemed in point of law an interest policy. The plaintiff insists, that he meant it to be an interest policy; and if he had a substantive interest on board the ship, capable of being insured, I cannot perceive upon what principle the defendants can now treat it as a gaming policy. The policy was a wager policy, as to both parties, or as to neither party. It has not a double character, as a policy on interest as to one, and not as to the other. If it be a policy on interest, then undoubtedly the plaintiff cannot recover, unless he shows an interest; for. in Massachusetts, at least, the doctrine of Goddart v. Garrett, 2 Vern. 269, is in full force. But, whether the court were in a strict and technical sense right in this view of the matter or not, I still think, that the court did put the law applicable to a case of this sort correctly to the jury. The court said, that if the defendants meant to insure on.interest, and the plaintiff meant a gaming policy, it was void; so that the point as to the gaming was put as favorably for the defendants, and as directly to the jury, as it could be.
The next exception is, that the court instructed the jury, on the point of valuation, that the plaintiff was entitled to a verdict, unless there was an over-valuation made by the plaintiff fraudulently, and with a design to deceive the defendants. To understand this exception fully, it is proper to state, that the line of argument of the counsel for the defendants on this point was. that if there was a designed gross overvaluation of the profits by the plaintiff, (whatever might be the moral character of the transaction,) it was in point of law a constructive fraud upon the defendants, which avoided the policy; and that a trivial interest would not save the policy. And the court expressly gave the same opinion to the jury. No point was made or argued, as to any over-valuation by mistake. But after the close of the argument, the counsel for the defendants requested the court to instruct the jury, that if the plaintiff expected a larger shipment of goods than was actually shipped, and made his valuation of profits upon that basis accordingly, then, that he was entitled to recover only pro rata, as the actual shipments bore to the expected shipment. And to this doctrine the court assented; and instructed the jury accordingly.
The charge of the court is now complained of, because it put the case of gross overvaluation, as a question of fraud, solely to the jury. Now, in so doing, it did no more than repeat the very doctrine asserted by the defendants’ counsel; and it was no part of its duty to suggest any other points, which in certain postures of the ease might possibly have been urged by counsel. But I am yet to learn, that the law is otherwise than it was stated by the court. By the law of Massachusetts valued policies are valid in general; and certainly valued policies on profits fall within the same rule.
No case has been cited, which affirms a 'different doctrine; and there are many, which inculcate this doctrine in cogent terms. In Lewis v. Bucher, 2 Burrows, 1171, Lord Mansfield said: “It is settled, that upon valued policies the merchant only need prove some interest to take it out of the statute of 19 Geo. II., because the adverse party has admitted the value; and if more was required, the agreed valuation would signify nothing. But if it should come out in proof, that a man had insured £2,-000, and had an interest on board to the value of a cable only, there never has been, and I believe there never will be a determination, that by such an evasion the act •of parliament may be evaded. There are many conveniences from allowing valued policies. But where they are used merely as a cover to a wager, they would be considered as an evasion.” Lord Mansfield, in the cáse of Da Costa v. Firth, 4 Burrows, 1969, in the passage already cited, held the same ■doctrine. I am not aware, that a different •doctrine has been anywhere established.
Then, as to the other point, in which the •defendants’ counsel prayed the instruction •of the court on the effect of an expected ■shipment and an actual shipment, complaint is made, that it was not made sufficiently intelligible to the jury. How that matter was, I cannot say. But I am bound to presume, that they understood the point. Certainly, if it had been deemed very material in the actual posture of the case, it might have been commented upon by the counsel for the defendants; and the court would have made any further explanations, which they should have requested. But the truth is, that in the actual state of the evidence there were no facts to raise the point; and so the evidence was stated to the jury at the suggestion of the defendants’ counsel. At the time of the insurance, the plaintiff had a perfect knowledge of all the shipments addressed to him by the Leonora; and if so, there was no ground to say, that he then expected none.
The next exception is, that the verdict is against evidence, or at least against the weight of evidence. The argument is, that the evidence in the cause established, that the over-valuation was so gross, that it was necessarily presumptive of fraud; that it could not enter into the reasonaoJe expectations of any man to make such profits on such a voyage; and that the jury have been wholly mistaken in their verdict. In considering questions of this nature, I confess myself among those judges, who are very reluctant to intermeddle with the verdicts of juries in mere matters of fact. There was a time, when courts were disposed to go an 'extravagant length on this subject, and to set aside the verdict of the jury, merely because, in the opinion of the court, the weight of evidence was on the other side. This was, indeed, substituting the court for the jury in trying the credibility of testimony, and the weight of evidence. For óne, I am not disposed to proceed far upon this dangerous ground; and in matters of fact, I hold it to be my duty to abstain from interposing with the verdict of a jury, unless the verdict is clearly against the undoubted general current of the evidence, so that the court can clearly see, that they have acted under some mistake, or from some improper motive, or bias, or feeling.
Now, upon the evidence, it was clear, that there could not be any profit upon bullion; for it was said, that none is ever made or expected. Upon the hides, according to the calculations, variously made by the plaintiff, there might be a profit from $1700 to $2500. On the other hand, by the calculations offered by the defendants, and supported in a good measure by the evidence, there might under some aspects be even a loss, and at all events there could not be a profit exceeding .$100 or $200. These calculations were submitted to the jury; and the question was left to them in this way, whether the overvaluation of the profits was designed to mislead the defendants into -underwriting a policy not in fact on interest If they thought it was, then, the policy was void. Their verdict in effect was, that the over-valuation was not fraudulent, but bona fide. And if the court now sets aside their verdict, it must be, because the court now clearly sees, that the jury ought upon the evidence to have found the over-valuation fraudulent. If it was a measuring cast, then, as the onus probandi was on the defendants, the verdict ought not to be disturbed. Now, certainly, I have a good deal of difficulty upon the evidence in seeing, how such an over-valuation could have been reasonably made. But, on the other hand, I have a good deal of difficulty in imputing fraud to the plaintiff! I do not know, that any over-valuation, however great, if it steers wide of a wager and a fraud, can be otherwise impeached. There is something, too, in the nature of an insurance on profits, which distinguishes it from any other insurance, whether on ships, or on goods, or on freight. The latter are generally susceptible of an exact valuation. But profits are not. In their very nature they are contingent and speculative; and upon them men’s judgments, as well as their imaginations, run wide from each other. It has been truly said at the argument, that there can be no standard of valuation of profits. They are matters of expectation. A policy on profits is not an insurance upon results, but upon expectations. The party insures, not what profits he would actually make, but what he expected to make. It is difficult to measure men’s expectations. There are complexional differences of mind on such subjects. There are vast distances between the moderated views of the timid and cautious, and the high-colored views of the sanguine and enterprising.
It is not sufficient to justify the court in setting aside the present verdict upon this ground, that it should doubt whether the over-valuation was innocent It must clearly see, that it was fraudulent Suppose the verdict should be set aside, and upon a new trial the jury were to find for the defendants, would that be entirely satisfactory? Might not the plaintiff fairly contend, that it was only verdict against verdict on a question of fact; and, therefore, that there should' be a third trial to settle the controversy?I am not insensible of the force of the defendants’ argument on this point But after-all, it turns upon this, that the court must find the fraud, which the jury refused to-find. In Coolidge v. Gloucester Ins. Co., 15 Mass. 341, 344, the freight was valued at three times its real value; and yet the court refused to open the policy. In the case of Patapsco Ins. Co. v. Coulter, 3 Pet. (28 U. S.] 222, -which was upon a policy on profits, valued at $20,000, the supreme court held, that it was not necessary to show, that any-profits would have been made. Now, this-must have proceeded upon the ground, that, if the valuation was bona fide, however-great, it was of no consequence, whether it could or could not be shown, that profits would have resulted from the voyage. The-court asked, what human calculation or human imagination could have furnished testimony on a fact so speculative and fortuitous? Upon the whole, upon this point,, whatever might be the scruples of my own mind upon the evidence, if I were sitting in. the jury-box, I cannot say, that it clearly appears to me, that the jury were wrong in-finding, that the over-valuation was not fraudulent. I am not bold enough to disregard their judgment in a case fairly before them, upon a matter of fact purely and fitly within their province.
I come, then, in the last place, to the-new evidence, discovered since the trial;, and that is, that a prior policy was underwritten at New York on profits valued' at $10,000, on the same voyage and risk, which has been paid. This is perfectly consistent with the plaintiff’s ease, and furnishes no new matter of defence; since in (he present policy the profits are valued at $20,000; so that the amount is sufficient to-cover both policies. It is, therefore, at most, the case of newly discovered evidence to-an old point of defence. Now, the objections taken to it, as a ground for a new trial, are, in the first place, that the defendants at the trial made the point, that there was in all probability another poliey on profits, and yet that they used no diligence, though they were thus put upon inquiry, to ascertain the fact. And what is-still more strong, that having a clear right in this court upon motion to have compelled' the plaintiff in this very cause to disclose the fact, whether there was any prior policy or not, they chose to go to trial without making the inquiry, though it is plain, that ordinary diligence would have brought it out. There is great force in this reasoning; and no answer was given to it at the argument, which entirely satisfied my mind. To set aside a verdict under such circumstances, on account of such newly discovered evidence, would be to encourage laches, and want of diligence, in regard to matters manifestly
I have thus gone over all the grounds urged with so much earnestness and ability in favor of a new trial. The conclusion, to ■which my mind has arrived, is, that the jury Bave not been misdirected in any matter of law; and that as to the matter of fact, it was fairly open before them, and peculiarly within their province; and I cannot judicially say, that the conclusion, to which they have come, is clearly erroneous, and must have arisen from some unquestionable mistake, or some improper motive or bias. In my judgment, therefore, the motion for a new trial ought to be overruled.
New trial denied.
Sutton Coldfield Corp. v. Wilson, 1 Vern. 254; Charitable Corp. v. Sutton, 2 Atk. 402, 403; Jackson v. Son, 2 Caines. 178. But see Moorehouse v. De Passou. 19 Ves. 433, 434, Coop. 300; Vaughan v. Worrall, 2 Madd. Ch. 322; Bland v. Archbishop of Armagh, 3 Brown, Parl. Cas. 620.
See Wolcott v. Eagle Ins. Co., 4 Tick. 429, 437.
See'3 Kent, Comm. (2d Ed.) Lect. 48, p. 275.
See Kent v. Bird, Cowp. 583.
Marsh. Ins. bk. 1, c. 4, § 2: Park, Ins. c. 14.
Marsh. Ins. bk. 1, c. 4.
Id. (2d Ed.) p. 127, § 2.
See Lucena v. Craufurd. 2 Bos. & P. (N. R.) 269, 321-323; Cousins v. Nantes, 3 Taunt. 513, 515, 523.
See Lowry v. Bourdieu, Doug. 469, 470.
See Grant v. Parkinson; Marsh. Ins. c. 3, § 8, p. 97; Barclay v. Cousins. 2 East, 544; Henricksen v. Margetson. Id. 549. note: Abbott v. Sebor, 3 Johns. Cas. 39: Phil. Ins. c. 3. § 8, p. 46; Patapsco Ins. Co. v. Coulter, 3 Pet. [28 U. S.] 222, 238.
See 2 Kent. Comm. (2d Ed.) Lect. 38, pp. 272, 273, and Id., note (d.)
See Phil. Ins. c. 14, § 1, pp. 305, 306: Marine Ins. Co. v. Hodgson. 6 Cranch. [10 U. S.] 206; Feise v. Aguilar. 3 Taunt. 506: Coolidge v. Gloucester Ins. Co., 15 Mass. 341, 344.
See Thurston v. Martin. [Case No. 14,018;] Blunt v. Little, [Id. 1,578.]
See, also, cases in Bigelow, Dig. Review & New Trial, C. k., p. 681; Astor v. Union Ins. Co., 7 Cow. 202; Ackley v. Kellogg, 8 Cow. 223; Douglass v. Tousey, 2 Wend. 352; Smith v. Hicks, 5 Wend. 48.
See Dickenson v. Blake, 7 Brown, Parl. Cas. 177; Carstairs v. Stein, 4 Maule & S. 192, 199; Sprague v. Mitchell, 2 Chit. 271.
