6 Whart. 483 | Pa. | 1841
The opinion of the court was delivered by
The first error assigned, which is an exception to the opinion of the court below, in permitting the plaintiff to amend his declaration, cannot be sustained. By the act of 21st of March, 1806, it is made the imperative duty.of the court, either on or before the trial of the cause, to permit the plaintiff to amend any informality in his declaration, or the defendant any informality in his plea, which may affect the merits of the case. The only objection made to the court’s allowing the amendment to be made here is, that it was too late. But, according to the expréss terms of the act, it cannot be said to be too late, if it be done at any time on the trial; that is, before the close of it. The amendment then, as it appears, having been permitted while the counsel were engaged in arguing the cause before the court and jury, was certainly made on the trial of the cause, and therefore within the time allowed by the act.
The remaining errors present but one question; and that is, whether the mere seizure of the goods by the sheriff under the execution in his hands against the assured, and closing of the window shutters and locking of the doors of the house in which they were found, and were to be kept according to the terms of the policy of
That the policy was good, and covered the goods up to the time of their seizure by the sheriff, is not denied ; but it is argued, that as the policy of insurance operates only in favour of the assured personally, and not on the goods, so as to accompany a transfer of the right of property in them, and as the assured must have the same interest or right in them at the time of the loss that he had at the time of obtaining the policy, the seizure of them by the sheriff, which, as it is alleged, divested the assured of the right of property in the goods as well as of the right of possession to them, released the underwriters from all obligation arising out of the policy. That the policy is not assignable, so as to follow or accompany a transfer of the right or interest, which the assured had in the goods at the time it was subscribed, may be admitted; but it cannot be admitted that the assured must have, at the time of the loss, the same interest in the goods that he had at the time of procuring the policy, in order to entitle him to claim for a loss actually sustained by a peril insured against. The legal adjudications on this point show the rule to bo otherwise, and that he may recover on the policy for the loss of a diminished interest. Stetson v. Mass. Mutual Ins. Co. (4 Mass. 330.) Gordon v. Mass. Mutual Ins. Co. (2 Pick. 249.) Reed v. Cole, (3 Burr. 1512.) Strong v. Man. Ins. Co. (10 Pick. 40.)
Neither can it be admitted that the seizure of the goods in this case divested the assured of his whole and entire interest and right in the goods. He still retained the general right of properly in them, notwithstanding the seizure by the sheriff. The most that the sheriff acquired thereby, was the possession, and a special or qualified right of property. Wilbraham v. Snow, (2 Saund. 47; S. C. 1 Sid. 438.) 1 Ventr. 52. 1 Lev. 282. 1 Mod. 30. Clerk v. Withers, 6 Mod. 290. The right of the sheriff by virtue of the seizure is defeasible; and hence, I take it, that it is his duty to release and give up the goods to the defendant in the execution, upon a tender of the debt and damages, or damages, as the case may be, together with the costs, being made to him; so that until the goods are actually sold by the shei’iff, the defendant has the right to redeem them, in order to prevent a further accumulation of costs and- a loss by a sale of them for prices under their real value. The act of assembly of the 22d of February, 1821,' regulating the fees to be received by sheriffs in such case, indicates this principle pretty clearly. But the consequence of the goods being destroyed in this case by fire, after the seizure, and before a sale could be made of them by the sheriff, without any default on his part, goes to show, to demonstration, as it were, the extent of the interest which the assured still continued to have in their being preserved from such destruction, or otherwise in being indemnified under the policy for the loss occasioned thereby
Judgment affirmed.