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IV. Total number of Wrecks and Casualties during the Years 1862 to 1860 inclusive,
distinguishing British from Foreign Ships, with the total number of Voyages of British and Foreign Ships. NUMBER OF VOYAGES.
NUMBER OF CABUALTIES.
THE SEA.—The mean depth of the sea is, according to LA PLAÇE, from four to five miles. If the existing waters were increased only by one-fourth, it would drown the earth, with the exception of some high mountains. If the volume of the ocean were augmented only by one-eighth, considerable portions of the present continents would be submerged, and the seasons would be changed all over the globe. Evaporation would be so much extended that rains would fall continually, destroy the harvests, fruits and flowers, and subvert the whole economy of nature. There is, perhaps, nothing more beautiful in our whole system than the process by which the fields are irrigated from the skies—the rivers are fed from the mountains—and the ocean restrained within bounds, which it never can exceed so long as that process continues on the present scale. The vapor raised by the sun from the sea flows wherever it is lighter than the atmosphere, and condensed, it falls upon the earth in water, If we suppose the sea, then, to be considerably diminished, the Amazon and the Mississippi, those inland seas of the Western world, would become inconsiderable brooks; the brooks would wholly disappear, the atmosphere would be deprived of its due proportion of humidity. All nature would assume the garb of desolation; the bird would droop on the wing; the lower animals would perish on the barren soil, and man himself would wither away like the sickly grass at his feet. He must indeed be incorrigibly blind, or scarcely elevated in the scale of reason above the monkey, who would presume to say, or could for a moment honestly think, when duly informed on the subject, that the machinery by which the evaporation and condensation has been constantly carried upon the earth for so many centuries ex. hibits no traces of Divine science, power and benevolence towards mankind, whose subsistence and happiness absolutely depend upon the circumstance of the waters of the ocean, earth and air, uniformly preserving the average of their present mutual proportions.--Quarterly Review,
JOURNAL OF MERCANTILE LAW.
1. THE STATUTE OF FRAUDB. II. INSURANCE. III. FIRE POLICY. IV. USE OF CAXPHEXE.
V. RAIL-ROADS. VI. THE BRITISH LAW OF BANKRUPTCY. VII. RAIL-ROAD MOETGAGE3. VIII. MOSAICS AND PRECIOUS STONES. IX. PLAYING CARDS.
THE STATUTE OF FRAUDS. A Promise to Pay the Debt of Another.— As is well known, the statute of frauds, first enacted during the reign of CHARLES II., (1677,) has been generally adopted in this country; yet none of the various statutes of the States exactly agree with the English statute, or with one another; but still, in substance, they are all very nearly alike.
The interpreting of this enactment has given rise to an almost endless amount of litigation; and even now cases are reported every day, on points which would seem long since to have been settled by our courts, and which litigation could therefore have been avoided, had the parties to the contract understood the true meaning of the statute, as already thus interpreted. Many of its provisions, too, relate so directly to commercial transactions that it is impossible for any one engaged in any mercantile or commercial business to be too familiar with them. We are led to these remarks from seeing a case reported in the last number of Gray's Mass. Reports, (Stone et al. vs. Walker et al., 13 Gray, 613,) involving a point which we had supposed was already so clearly settled by repeated decisions that it would be impossible again to raise a question about it.
It will be remembered that this statute of frauds relates to several distinct kinds of contracts, but we would only call attention, at this time, to that provision requiring a promise to answer for the debt of another person to be in writing. To understand this provision fully it is only necessary to bear in mind one or two principles which the decisions made under it have clearly laid down.
And in the first place, of course, there must be a consideration for such a promise, to make it good. Hence, even if one promises in writing to answer for a debt of another, where there is no consideration for the promise, the promise cannot be enforced. The consideration may be either “a benefit to the promissor or else an injury or loss to the promisee, sustained by him at the instance and request of the promissor;" but there must be, as we have said, some consideration, either of one kind or of the other, to sustain the promise.
Then, again, it must be, as the statute says, in writing. But here arises the question which has been the source of most of the litigation under this provision, and it is this: What promises or contracts come within this statute ? By the words "within the statute” is meant what contracts the statute applies to. Our courts, in interpreting this provision and answering this question, have long since made a distinction, which, if remembered, will explain the whole thing, and clear up the difficulty. They have settled, that where the promise is an original undertaking it does not come within the statute, and need not, therefore, be in writing ; but where it is a collateral promise, it must be in writing. For instance: “ If two come to a shop, and one buys, and the other, to give him credit, promises the seller, “If he does not pay you I will,' this is a collateral undertaking, and void by the statute of frauds, unless in writing. But if he says, “Let him have the goods—I will be your paymaster, this is an original undertaking, an undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant.” This is the substance of an illustration in an old English case, but the same has been used and the principle affirmed in very many of our American cases. In the recent one above referred to (13 Gray, 613) the court says: “If the promise is made by one in his own name to pay for goods or money delivered to or services done for another, that is original ; it is his own contract, on good consideration, and is called original, and is binding on him without writing. But if the language is, • Let him have money or goods, or do service for him, and I will see you paid,' or, 'I promise you that he will pay, or, “If he do not pay I will,' this is collateral, and, though made on good consideration, it is void by the statute of frauds, unless in writing.” This principle will also be found illustrated in the older Massachusetts case of Nelson vs. Boynton, 3 Met. 400, as well as in numberless other cases in other States.
Thus it will be seen that the question always to be decided is, (see Parsons on Laws of Business, 77,) To whom did the seller give and to whom was he authorized to give credit? This question the jury will decide, upon consideration of all the facts, under the direction of the court. If a seller sues one to whom he did not deliver the goods, on the ground that this other promised to pay for them, then the question is, Did this other promise to pay for them as for his own goods ? for then it is an original promise, and the promise need not be in writing ; or did he promise to pay for them as for the goods of the party receiving them, and in case such party did not pay? then it is a collateral promise, and must be in writing. If, on examination of the books of the seller, it appears that he charged the goods to the party who received them, it will be difficult, if not impossible, for him to maintain that he sold them to the other party. But if he charged them to this other, such an entry would be good evidence, and, if confirmed by circumstances, strong evidence, that this party was the purchaser. But it cannot be conclusive, for the party not receiving the goods may always prove, if he can,
that he was not the buyer, and that he promised only as surety for the party who was the buyer, and, consequently, his promise cannot be enforced, if not in writing. And, in general, in determining this question, the court will always look to the actual character of the transaction and the intention of the parties.
There is also another kind of promise, which is original and not collateral, and which does not, therefore, come within the statute. It is this: when the promise to pay the debt of another is not made at the time the debt is contracted, but subsequently, and arises out of some new and original consideration of benefit or harm moving between the newly contracting parties. As Kent, Ch. J., says, (8 J. R. 29,) "If a promise to pay the debt of another be founded on a new and distinct consideration, independent of the debt, and one moving between the parties to the new promise, it is not within the statute, but is an oriri
For instance, take the case of SKELTON vs. BREWSTER, (8 J. R. 376,) where A., in consideration that B. would deliver him all his household goods, and that C. would discharge B. from execution, promises to pay C. the amount of the execution. In that case it was held that the promise of C. was an original undertaking and not within the statute. So, also, in GOLD vs. Philips, (10 J. R. 412,) the court held, that if A., in consideration of a sale of land to him by B., promise to be accountable for debts due C. from B., it is an original undertaking, and not within the statute. So, also, in Mercein vs. ANDREWS, (10 Wend. 461,) it was held, that a promise to pay the debt of a third person, in consideration of the promisee surrendering property levied upon by execution, is, in like manner, an original undertaking, and need not be in writing to render it valid. These cases show very clearly the general principle, that when the promise to pay the debt of another is subsequent to the contraction of the debt, and arises out of some new consideration, such a promise does not come within the statute. We have also seen above, that when the promise is such that the guarantor becomes actually the purchaser, the promise in that case is, also, not within the statute. These exceptions, then, (if we may be permitted to call them such,) embrace, we believe, all the explanations necessary for a right understanding of this vexed question; and, could these principles and explanations be as familiar as household words (and they ought to be) to every one, we should have no more litigation under this provision of the statute of frauds.
INSURANCE. Insufficiency of Policies.—In our last number was reported the case of Taylor vs. The Ærna LIFE INSURANCE COMPANY OF MASSACHUSETTS, (13 Gray, 434,) illustrating the necessity of stating in an insurance policy the precise restrictions the company wishes to make to their contract. We find in the last volume of the Reports of the Court of Appeals of New York State, (CAsler vs. THE CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, 22 N. Y. 427,) another instance of this same carelessness in wording a policy. In fact, the books are full of just such instances. Yet nothing is more damaging to insurance companies, as all know, than litigation as to the nature of the contract after a loss has happened. Nor is there, as a general thing, any need for it. The contract should be drawn up in simple, precise language, leaving out all vague generalities, so that the assured may know, without a doubt, what he can depend upon. When there is an actual honest loss, we think that the claim should be paid at once, and no attempt made on the part of the company to dig up de fences or to creep out of their liability. In most cases, however, we are happy to say, that the difficulty between the insurer and the assured arises, as we have intimated, not from a dishonest desire of the company or its officers, but from having inserted in the contract phrases used in common conversation which have no accurate and well-defined meaning. For instance, take the case (13 Gray, 434) referred to in our last number. There the company probably wished not to assume the risks incident to a second-class passage to California in a second-class vessel. But fancying that if they expressed a part, the remainder would be understood, they simply restricted the assured to a first-class vessel. In ordinary conversation, if one were to tell us that he made a voyage in a first
class vessel, we might, to be sure, suppose that he did not go as a steerage passenger." But in drawing a contract it will not do to express only a part of what is meant, and rely upon such loose construction to work out the remainder of the intended meaning. Especially is this true of an insurance contract; for a policy of insurance is a contract of indemnity, and must, therefore, receive such a construction of the words employed in it as will make the protection it affords co-extensive, if possible, with the risk of the assured. (1 Hall, 166.) When, therefore, it is desired that the assured should not “ pass to and from California” as a steerage passenger, it must, without doubt, be so stated in the policy.
The case of CASLER vs. THE CONNECTICUT MUTUAL LIFE INSURANCE COMPANY (22 N. Y. 427) is also, as we have said, an error of the same class, and the precise error made in this instance is one that many companies have fallen into, as appears by the policies we have examined, issued by them. The company in this case wished, we suppose, not to assume the risk the assured would incur by going into some of the almost unsettled portions of our country's territories. To express this wish the policy restricted the assured “ to the settled limits of the United States.” Of course, when the court came to give effect to such a clause, it was held to be too vague and uncertain to mean what the company supposed it did, and therefore decided that it only restricted the assured to the settled boundaries of the United States-that is, that the policy allowed the assured to pass through any of the States (with the exceptions specially named) or territories, whether settled or unsettled. But we deem this case of so much importance that we shall insert it almost entire, simply adding that too much care and study cannot be spent upon each word of a policy, and the simpler and more exact the words, the less chance there will be of misunderstanding and litigation. The facts and opinion of the case we refer to (22 N. Y. 427) are in substance as follow :
Facts. This action was brought to recover the amount insured by a policy issued by the defendant upon the life of Nicholas CABLER, of which the plaintiff was the assignee. One of the conditions of the policy was in substance that if the assured should pass beyond the settled limits of the United States, (except into the settled limits of the British provinces of Canada, &c.,) or visit parts of the United States lying south of the southern boundary of Virginia and Kentucky during certain periods of the year, then the policy should be void. The complaint averred the issuing of the policy and its assignment, and that the death of Casler took place on the 21st June, 1850, within the settled limits of the United States, and while the policy was in force. The answer denied the averment in respect to the death of CASLER, and alleged affirmatively that on the 21st of June, 1850, he was beyond the settled limits of the United States.
Upon the trial it was proved that in the spring of 1850, CASLER started upon a journey to California by the route over the plains from Fort Independence, in the direction of the Great Salt Lake, and at the upper crossing of the South Fork of the Platte River was seized with cholera, and died there on the 21st of June, 1850.
The judge who tried the cause found, among other things, that the assured died at the time and place specified in the complaint, and, as a conclusion of law, that he did not pass and was not, at the time of his death, beyond the settled limits of the United States.