HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0008 and id is 1 raw text is: ROSS V. HUNTER
contents of the bill to the person named in it, or to his order. The general form of
the declaration, which is to be found in some of the old entries, also agrees with this
doctrine, and points out what the law is: I observe indeed that this declaration is
not drawn in the usual form, for the words to whom or to whose order, are
omitted ; but still it is that the said H. Davis, that is, the same H. Davis who is
mentioned in the former part of the declaration, as the payee, indorsed to the
plaintiff. It clearly, therefore, appears, that as no person can demand payment of a
bill of exchange but the payee, or the person authorized by him, the acceptor only
undertakes to pay to them, and cannot be compelled to pay to any other person. If
he pay the amount of the bill to any other person, he pays it in his own wrong, and
such payment does not discharge his debt to the drawer. If this decision will prove
a clog on the circulation of bills of exchange, I think it will be less detrimental to
the public, than permitting persons to recover through the medium of a forgery.
And that this was a forgery cannot be doubted, if we consider the definition of it;
which is, the false making of any instrument, indorsement, &c. with in-[33]-tent to
defraud (a). It makes no difference whether the person making this false indorsement
were or were not of the same name with the payee, since he added the signature of
H. Davis, with a view to defraud, and knowing that he was not the person for whom
the bill was intended. I agree also with my brother Buller, that this decision will be
more convenient to the public ; because then the plaintiff will prosecute the person, who
indorsed to him, for the forgery. For these reasons I am of opinion, that, as this
bill of exchange was only payable to the payee or his order, it was competent to the
defendant, the acceptor, to inquire whether the person under whom the plaintiff
claims, were or were not the payee.
Per Curiam, rule absolute.
Ross against HUNTER. Thursday, Nov. 18th, 1790. In an action by the assured of
goods against the underwriters for a loss by the barratry of the master, proof
that the person who was described in the policy as master, and who was treated
with and acted as such, carried the ship out of her course for fraudulent
purposes of his own prim& facie, is sufficient to entitle the plaintiff to recover,
without shewing negatively that he was not the owner, or that any other person
was. Such proof lies on the defendant, wishing to avail himself of it to establish.
And where the voyage insured was from Jamaica to New Orleans, which lies up
the river Mississippi, and the captain proceeded on his voyage as far as the
mouth of that river, and then dropped anchor and went up the river in his boat
for a fraudulent purpose of his own, held that the dropping of his anchor with
such fraudulent intent was an act of barratry, and not merely a deviation.
This was an action against an underwriter upon a policy of insurance on goods on
board the Live Oak, whereof was master Joseph Rati, at and from Jamaica to New
Orleans. The first count in the declaration, which was in the usual form, contained
an averment that the ship, before her arrival at New Orleans, was, together with the
goods, &c. by the barratry of the said Joseph Rati, he then and there being master of
the said ship, &c. run away with and wholly lost to the plaintiff, &c.
There was a second count in the declaration as upon a loss by the perils of the sea.
It appeared at the trial that the Live Oak was put up by Rati, who acted as
master, as a general ship, at Kingston in Jamaica in 1783, and that the plaintiff,
amongst other persons, shipped the goods in question, which were flour and other dry
oods on board her. She sailed on the voyage insured in May 1783, and arrived in
une following at the mouth of the river Mississippi, which leads up to New Orleans
in Spanish America, at the distance of about 35 leagues. When the captain had got
thus far he dropped anchor; and went in his boat up the river to New Orleans, and
on his return, without carrying the ship to her port of destination, stood away for
the Havannah. [34] After his departure from whence, he was never afterwards heard
of. It appeared that he had a private adventure of negroes of his own on board,
which there was reasonable evidence for supposing he intended to have disposed of
at New Orleans; but finding it difficult to do so, on account of an interdiction against
the importation of them by the Spanish Government, he went to the Havannah, in
(a) Vid. 2 Geo. 2, c. 25, s. 1.
4 T. R. So](ViewImageLocal?handle=hein.slavery/ssactsengr0008&div=1&collection=&method=preview&ext=.png&size=3)