ton

V.

terest; and it could not be in the power of the 1825. first bold adventurer who should seize and sue Corporation upon it, to appropriate it to his own use, and to of Washingforce the obligees to appear in Court as plaintiffs against their own will. No person who is not the Young. proprietor of an obligation, can have a legal right to put it in suit, unless such right be given by the Legislature; and no person can be authorized to use the name of another, without his assent given in fact, or by legal intendment. The declaration of the Judge in the case cited from Harris & Johnson, that a Court of Chancery might injoin the obligees to allow the injured person to use their names in that particular case, is evidence of the opinion, that he could not sue at his own will. We think, then, that this case is no authority for the power claimed by the proprietors of ticket No. 1,037; and we think, upon general principles, they had no right to institute this suit without the consent of the corporation.

But, we think also, that the corporation itself must be considered as the real plaintiff, and that its right to prosecute the suit cannot be affected by the allegation that it is brought for the benefit of others.

It has been determined in this Court, that the warrant of attorney need not be spread on the record, to enable counsel to appear for a corporation; and if the dismission of the suit be not ordered, the consent of the corporation will be presumed after verdict." If, in its progress, the

a See Osborn v. United States Bank, ante vol. ix. p. 738. 829. VOL. X.

52

1825. Court shall perceive that it is brought without authority, the proper course would seem to be to Corporation of Washing-dismiss it; not to render judgment for the defendant, which might, where no special breach is asYoung. signed, bar any other action.

ton

V.

The proprietors of the ticket No. 1,037 have shown no right to sue on this bond. Their remedy is certainly directly against Gideon Davis; and, in the event of his insolvency, it may be against the managers. But, if they have, without authority, put this bond in suit, the proper course is to turn them out of Court, not to render a judgment, which may bar any future suit brought by the plaintiffs, whose names have been improperly used.

The judgment of the Circuit Court, therefore, must be reversed; but as the pleadings are so incomplete as not to show what judgment ought to be entered, the proceedings are set aside up to the declaration, and the cause remanded to the Circuit Court, to be farther proceeded in according to law.

Judgment reversed accordingly.

1825.

Janney

[INSURANCE.]

JANNEY V. The COLUMBIAN INSURANCE COMPANY.

Under a policy containing the following clause: "It is declared and
understood, that if the above mentioned brig, after a regular sur-
vey, should be condemned for being unsound or rotten, the insurers
shall not be bound to pay the sum hereby insured, nor any part
thereof." A survey by the Master and Wardens of the port of
New-Orleans, which was obtained at the instance of the master,
who was also a part owner, and was transmitted by him to the other
part owner, and by the latter laid before the underwriters as
proof of the loss, stated, that the Wardens "ordered one streak
of plank fore and aft to be taken out, about three feet below the
bends on the starboard side; and found the timber and bottom
plank so much decayed, that we were unanimously of opinion her
repairs would cost more than she would be worth afterwards, and
that it would be for the interest of all concerned she should be
condemned as unworthy of repair on that ground. We did, there-
fore, condemn her as not seaworthy, and as unworthy of repair;
and, therefore, according to the powers vested by law in the Master
and Wardens of this port, we do hereby order and direct the afore-
said damaged brig to be sold at public auction for the account of the
insurers thereof, or whomsoever the same may concern." It was
held, that the survey was conclusive evidence, under the clause, to
discharge the insurers from their liability for the loss.
Quære, How far the State Legislatures may authorize the condemna-
tion of vessels as unseaworthy, by tribunals or boards constituted
under State authority, in the absence of any general regulation
made by Congress, under its power of regulating commerce, or as
a branch of the admiralty jurisdiction?
However this may be, the above condemnation not being specially au-
thorized by any law of the State of Louisiana, it would not have
been considered as conclusive evidence within the clause, had not
the condemnation been obtained by the master, as the agent of the
owners, and afterwards adopted by them as proof of the facts stated
therein.

V.

Columbian
Ins. Co.

1825.

Janney

V.

Columbian

ERROR to the Circuit Court for the District of Columbia.

This was an action brought in the Court below Ins. Co. by the plaintiff in error, Janney, against the defendants in error, the Columbian Insurance Company, on a policy of insurance on the brig Hunter, Grinnolds, lost or not lost, from Alexandria to Norfolk and New-Orleans; in which policy there was the following clause: "It is declared and understood, that if the above mentioned brig, after a regular survey, should be condemned for being unsound or rotten, the insurers shall not be bound to pay the sum hereby insured, nor any part thereof."

On the first trial of the cause, the jury, not agreeing on a verdict, was discharged; and, on the second trial, a verdict was found for the defendants, under an instruction from the Court to the following effect, as stated in the bill of exceptions:

And the plaintiff offered to prove, by parol evidence, that at the time that the said brig Hunter sailed from the port of Alexandria upon her voyage aforesaid, and at the time she was surveyed and condemned at New-Orleans as herein after mentioned, she was sound, and that the repairs of vessels, and materials of ship-building, at that place, were very high; and that the prices there would have amounted to two or three times as much as the prices would have amounted to in the port of Alexandria; and that the repairs of the said vessel, arising from the injuries which she

V.

Columbian

had sustained in her voyage to New-Orleans, 1825. would not have amounted to less, in that place, than 2,000 dollars, independent of the detention of the vessel, and the other necessary expenses Ins. Co. of the voyage. But the defendants produced, and read in evidence to the jury, a regular survey, called upon the state and condition of the vessel on her arrival at New-Orleans, by the said Capt. Grinnolds, master and part owner; and by him transmitted to the plaintiff to be laid before the insurance office as evidence of loss; and actually laid before such office by the plaintiff accordingly; and, at the former trial, read on the part of the plaintiff in evidence to the jury, in the words following:

"Port Wardens' Office,

New-Orleans, 13th January, 1819.

"We, the subscribers, the Wardens of this port, having been thereto required by Capt. Grinnolds, did repair on board the brig Hunter, commanded by him, and lately arrived from Norfolk, and, assisted by A. Seguin, carpenter, surveyed her condition. Found twenty-five feet of quarter rail, and seventy-five feet of waist boards, and the boat's david, carried away; the oakum of the break of the quarter-deck started, and also the strings and drifts; the cambouse stove, and its house carried away; the vessel was reported to have leaked much at sea. All which, therefore, according to the powers vested by law in the