Elting, Dunlap and Grant against Scott and Seamen, 2 Johns. 156

Kent, Ch. J. delivered the opinion of the court. The court in the first place, rejected the evidence of a case which had been made in an action brought by the -present defendants against Mark and Speyer. This case was offered, in order to raise a presumption, that the defendants had represented the property to he neutral. It is, Jjoweyer, a sufficient ..answer to this, to observe, that a representation to one insurer cannot be evidence of a like ¡representation to another insurer, on a different policy, The inference is too remote, and has .no'-solid ground to support it.

These cases are a species of testimony which ought not, perhaps in any case, to be admitted, unless where the admission is made a condition of granting a mew trial; nor has it beeii the practice to admit them.

They are generally drawn by counsel, without any communication with the parties, and often with a view to bring .before the court some particular point unconnected with much of the narrative' part of the case, and which, for thatwery reason, may have passed without criticism or attention, The other testimony refused, wasthajt which was offered to show, that the interest of George Scott was not co.mmnm.caied to the plaintiffs, and that the ■knowledge of that fact would have increased the premium, I am also of opinion, that this testimony was properly rejected us impertinent.

The policy stated, that the plaintiffs underwrote for the defendant or whomsoever else might have an interest; it was a policy without any warranty of neutrality, and, as I am bound to conclude, without any representation to that effect, because there is po evidence of such representation. The plain? tiffs then took upon themselves the risk of the property, whether neutral or belligerent, according to the decision in Murray v. The U. I.

Company. (April Term, 1801.) It would appear, therefore, to have been perfectly inirna? terial whether the interest of George Scott was or was pot disclosed, That interest made no alteration in the risk assumed, and there is no sufficient cause why it should have affected the premium, As the plaintiffs as? sumed war-risks, it must be presumed that they toojc what was deemed in that case an adequate premium, Whan the legal operation of a policy is ascertained by a spre and decisive test, the rate of premium is a circum? stance wholly immaterial, and cannot alter its constóme- , _ . „ :tion. it is m this view that 1 consider the testimony ot-fered as inadmissible, • 2, The second point has been -already anticipated -; ;and if the residence and interest of George Scott were concealed, it \yas not a material concealment, because his interest did not vary the risk.

But there is no evidence that his interest was concealed; and any inference to that ,effect would be too remote. The facts in the casé were not sufficient to warrant a jury to .draw the inference. 3. The third point is, that the, vessel sailed without 'her "papers. A confession was made by one of the defendants that the vessel sailed without a sea-letter, and the witness thinks that the defendants also said, that she had sailed without her papers. But I very much doubt whether it be a part of the implied warranty,of-seaworthiness, that a vessel shall have her-.proper documents -on board.

There is no case that' goes to that length, These documents are only material when the national .character of t he vessel is warranted or represent ed. In the present case, it does not -appear to what nation, or to what individual the vessel belonged. All that is stated is, that she was to sail on a voyage from Curacoa to New-YorTc ; the’plaintiffs, as insurers ofthe cargo on board, took upon themselves belligerent risks.

The' sea-letter and other documents could only have been requisite to protect the vessel as a neutral, but it was no part .ofthe contract that she was to sail in that character ; or to protect her against the revenue laws of Curracoa, but those laws we are not to notice; or to comply with the laws. .of our own country, to which the vessel was bound ; but there is no evidence that she was sailing in contravention of our laws. (Christie v.

Secretan.) A vessel may be competent to perform the voyage insured without the possession of these documents; and although we do not profess to declare a very strong opinion pri this point, we .are-hiclinedto think that the want of those documents could not have furnished to the plaintiff a valid defence against the policy. 4. The last ground for the present motion is, that it ought to have been submitted to the jury to determine whether there was a due disclosure of the facts at the time the loss was paid ; or if disclosed, whether the plaintiffs did not act under a misapprehension of the law.

As a question of fact, there is no evidence of a want of due disclosure; and the jury would not have been warranted to have drawn that inference against the defendants. The sentence of condemnation was exhibited, and we must intend, that such senterice contained the material facts. If it did not, the plaintiffs ought to have produced it, to show what it did contain.

That sentence must be presumed to have contained all that was requisite to be'disclosed, to entitle, the assured to call upon the plaintiffs for their indemnity; and as the plaintiffs paid a total loss upon that disclosure, they have not shown any just ground for reclaiming the money. It was incumbent on them to have made out, affirmatively, a clear case of mistake, but they have failed in showing any mistake, either of the fact or of the law.

It will be unnecessary, to consider the question which was agitated upon the argument, whether a payment made under a mistake of the law, and with full knowledge of the facts, will, in any case, upon that ground only, sustain an action for .money had arid received. This question has been very ably discussed, and different opinions formed upon it by the civilians ; but it is considered as settled in England, by the late case of Bilbie v. Lumley; (2 East. 409.) and that decision seems to be in conformity with the doctrine anciently taught' in the Doctor and Student.

But on this point we mean not to give any opinion ; as the plaintiffs did not make out a case which would entitle them to a verdict, the nonsuit ivas properly directed, and the motion so set it aside ought to be denied. Rule refused. 8 Term, 192. Opinion of Lawrence, J. P. 79. 147, 152, 251. 1 Caine's, 237, Barnewell v. Church, Murray v. United Insurance company, July Term, 1800. 1 Caine's Cases in Erro 1 Vos. 7 Graves v. United Insu. Company.