1808. the question. Such is the universal mercantile usage. In France ROUSSET a policy is negotiable to order or bearer like a bill, 2 Valin 45.; and the ordinances and usages of France have often received great attention from this court, upon questions of the law merchant. V. Ins. Co. The circumstance, that the policy is inseparably attached to the property, has great weight from analogy to the common law cases of covenants running with the land. In these, and in all other real covenants, the assignee may sue in his own name. But the defendants have no equity. The policy authorizes certain defalcations, as the premium of the particular insurance, and the two per cent. abatement; all others are therefore excluded. Expressum facit cessare tacitum. They should have retained the policy until the premiums were paid. They have enabled Nones to impose upon the plaintiff, and have lulled him into a false security, by which they should lose, and not he. Gourdon's case is very distinguishable from this. His assignees, like assignees of bankrupt, stood precisely in his place, and they in fact sued in his name. The equity which the defendants had against him, they therefore had against his assignees, according to Bosvill v. Brander (a) and Taylor v. (a) 1 P. Wms. 459. not prevent the obligor from showing a want of consideration, or setting off any counter demand against the obligee. I have before mentioned that it is incumbent on the assignee of a bond to call upon the obligor, to know the quantum of the debt due. I take it to be likewise incumbent on the assignee of a policy to call upon the underwriter and inform him before any account of a loss, and to inquire if he has any thing to set off against the policy. If the underwriter has this notice, and either makes no objection and claim, or is totally silent as to any claim, 1 should consider the assignee of the policy in the same condition, as the assignee of a bond under like circumstances; and that both are entitled to recover notwithstanding the underwriter in the policy, or the obligor in the bond, should afterwards discover that he had a counter demand; and that their mouths are stopped by their acquiescence or silence; otherwise in both cases it would lead to a deception. The chief question then in this case is a question of fact, whether there was any notice given to the insurance company of the assignment; and whether they either by acts, words, or silence, waived giving any intimation of their demands against the assured. We will only add that the underwriters are acquitted, unless the plaintiff or his creditors have suffered by their default in not letting their claims be known. The jury found for the plaintiff, but that the defendants were entitled to the defalcation, 1808. ROUSSET V. Wheeler (a). But here we have paid a valuable consideration. Gourdon's was also a valued policy, and the claim, for a total loss; this is an open policy, and the claim for a partial loss; and it is clear by the law of England, which seems by the case of Gor- Ins. Co. don v. Bowne (b) to be also the law of New York, that a set-off is not maintainable in such a case. I however do not mean to press this point, as our act of defalcation goes further than the English statutes. Hopkinson and Ingersoll, who were to have argued for the defendants, were stopped by the court. TILGHMAN C. J. This cause comes before us on a case stated. Benjamin Nones had an insurance effected on the brig Charlotte. He afterwards assigned the policy to the plaintiff, and then became insolvent. There was a partial loss, concerning which there is no dispute. The only question is whether the defendants can set off against the plaintiff, a debt due from Nones at the time the policy was underwritten. The court thought it unnecessary to hear the counsel for the defendants; because they considered this point as having been settled in the case of Gourdon (for the use of his assignees) against The Insurance Company of North America, tried in bank at March term 1802. The charge of chief justice Shippen, delivered with the approbation of all the judges, established a principle decisive of the question now before us: that is to say, that a policy of assurance was to be considered as other choses in action, which are not assignable by the common law, but only in equity; and consequently the assignee takes it liable to all defalcations to which it was subject before the assignment. That case was fully argued. I have read judge Yeates's manuscript note of it, and find that the arguments urged by Mr. Levy in this case, were then brought forward by the counsel for Gourdon's assignees. Upon the authority of that case, therefore, the court are now of opinion that the defendants are entitled to the set-off for which they contend. SMITH J. I am of opinion that the defendants are entitled to the set-off claimed, under the practice between the assured and (a) 2 Vern. 564. (b) 3 Johnson, 150. N. A. 1808. ROUSSET V. Ins. Co. the underwriters in the city of Philadelphia. I do not need the aid of the decision in Gourdon's case to warrant this opinion; it is founded on the common course of mercantile transactions. PER CURIAM, Judgment for defendants. Saturday, December 24th. A joint commission issued to London, in which the med com missioners the defend ant named A. B E PIGOTT against HOLLOWAY. IN ERROR. RROR to the common pleas of Montgomery. Holloway, the plaintiff below, brought indebitatus assumpsit upon a judgment entered by warrant of attorney against Pigott in the plaintiff na common pleas of Westminster. A joint commission issued to London for the examination of witnesses; with which the plaintiff sent interrogatories to be exhibited to witnesses produced on his own fession and behalf, and other interrogatories for the witnesses that might be particular residence he produced on behalf of the defendant; and he named as his comset out; and missioners Samuel Marshall, of Serjeant's Inn, Fleet-street, in the city of London, serjeant at law, and Vitruvius Lawes, of Red Lionsquare in the county of Middlesex, barrister at law. The defendant sent interrogatories to be administered to the witnesses "don." The produced on his own behalf, and named as his commissioners, plaintiff's commission- Robert Thomas esquire, and Mr. Joseph Robinson, both of the city of London. The commission, which was forwarded in June or July 1805, was executed in January 1806 by the plaintiff's commissioners only; who certified that, having caused due inquiries to be made after the residences of Robert Thomas and and noch Joseph Robinson, named with them for executing the commispersons be and C. D. "of Lon ers caused inquiries to be made for the commissioners of the defendant, ing found, they executed the commission ex parte. Held that the commission was well executed. Interrogatories, which are directed to be put to the witnesses on behalf of one party, need not be put to the witnesses of the other. A subscribing witness to a warrant of attorney swore, that from his minutes he found he was present at a certain place on a certain day, being the day the warrant bore date, and that upon reference to the warrant he found his name in his own handwriting as an attesting witness, and that the seal appeared to have been taken from an engraving he then and still had; and from all these circumstances he was convinced that he was present, and witnessed the execution of the instrument. This is sufficient proof of the warrant to go to the jury. υ. WAY. sion, in order to give them notice thereof, and it appearing to 1808. them that no such persons were to be found, they had proceeded PIGOTT to the execution of the commission ex parte. They also attached to the commission the affidavit of Faithful Croft, sworn be- HOLLOfore A. Chambre at his chambers in Sergeant's Inn, London, stating that in pursuance of instructions from the plaintiff's commissioners, he had diligently made inquiries to learn the residences of Messrs. Thomas and Robinson, on the American walk in the Royal Exchange, at the houses of several American merchants, at the New York and Carolina coffeehouses, and at the general postoffice; and not being able to gain any intelligence of them, he left the outside cover of the commission containing a direction to all the commissioners, with a clerk at the postoffice, and requested him to inquire for them of all the postmen and lettercarriers, for the city of London and its vicinity; and that he was afterwards informed by the clerk, whom he believed, that he had called out their names two days in succession to all the lettercarriers; but their residence was totally unknown to them. No witnesses were produced on behalf of the defendant; and the plaintiff's witnesses were examined only upon the plaintiff's interrogatories. Annexed to the commission was a warrant of attorney dated 23d May in the 35th of George 3d, purporting to be signed by the defendant, and to be witnessed by H. Martelli, who, in answer to one of the plaintiff's interrogatories, swore that upon reference to his minutes, he found he was present at the London tavern in Bishopsgate street in the city of London, on Saturday the 23d day of May 1795; and upon reference to the warrant of attorney signed Edward Pigott, purporting to be a warrant of attorney from Edward Pigott of Twyford in the county of Berks, esquire, to the plaintiff, for securing the sum of 5541. and interest, there not appearing to have been any bond, he found his name in his own handwriting subscribed thereto as the attesting witness to its execution; and that the defeasance to such warrant of attorney was all in his handwriting, and the impression of the seal appeared to have been taken from an engraving he then and still had; and from all these circumstances he was convinced that he was present and witnessed the execution of such instrument, to which there was no other subscribing witness. 3 K VOL. I. 1808. PIGOTT υ. WAY. Upon the trial below, the depositions and answers under the commission were offered in evidence, generally, by the plaintiff; and they were objected to by the defendant, because they HOLLO- were taken ex parte, and because the defendant's interrogatories had not been put to the plaintiff's witnesses. But the court overruled both objections. The plaintiff then offered to read the warrant of attorney; to which the defendant objected, because the execution of it was not sufficiently proved by Martelli's deposition. But the court suffered the warrant to go to the jury; and sealed a bill of exceptions upon all the points. Frazer for the plaintiff in error contended, that under the circumstances of the case, the nonattendance of the defendant's commissioners was fatal. The commissioners of the plaintiff made no inquiry themselves; but referred it to Croft, who sought among merchants for persons who do not appear to be of that description, and then turned the matter over to a clerk in the postoffice. Every thing he learned from the clerk is hearsay; he did not know a syllable of it to be true; and the obvious way to ascertain the truth would have been to swear the clerk or the lettercarriers. The neglect of such a precaution is strong to shew a design of excluding the defendant's evidence. Croft himself was not legally sworn. The oath was administered by one who does not set forth any authority; and the affidavit is therefore no more than an informal account of what another person told him, which should not have received the least credit from the court below. The defendant's interrogatories should have been put to the plaintiff's witnesses, for whom from their nature they were designed, as well as for his own. At present the witnesses stand without cross examination, although the materials for it were in the commissioners' hands. Martelli does not swear either that he saw, or that he believes he saw, Pigott execute the warrant of attorney; or that the signature is his handwriting. He merely swears that from his minutes.he is convinced he witnessed its execution, which might have been by a person who forged Pigott's hand. To make a deed evidence, the execution of it must be proved by at least one witness, who saw it sealed and delivered by the party. The handwriting is one step; but although this be proved, or even confessed, it will not answer without proof of |