
    Johnston against The Columbian Insurance Company
    NEW-YORK,
    Nov. 1810.
    loss on a policy of insurance were submitted by the insurers to their agent, -who stated the amount c,f loss; which was cordingly paid into court; it was held that the act of the agent of the insurers mitted the cieney of the 1)1oCfS, tiOiL the insurers ad mitted the sufli� cieney of the 1)1oCfS the ii~~t instajice. }n~ taunt of oso� ney into court admits the esuse of aclijo as sta� ted in the phtin~ dif's decInra'~ tiOiL
    THIS was an action on an open policy of insurance on cargo, fr,m New-York to Mar1~nique. The policy was dated the 25th of Jifay, 1807. The plaintiff abandoned on the 5th October, 1807, for a total loss, by perils of the sea. The declaration, besides a count on the p0-licy for a total loss, contained the usual moiiey counts. The defendants pleaded the general issue, and paid into court 1,400 dollars, under the common rule, upon the whole declaration.
    The cause was tried at the .ATew*Terk sittings, in April, 1810, before Mr. Justice Spencer. The vessel sailed on the voyage with a cargo belong~ ing to different shippers, besides the plaintiff. The liminary proofs which were admitted were a pi otest made at Martinique, an h~voice of the cargo belonging to the plaintiff, who was the master of the vessel, toge~ ther with the original bills of parcels for the goods, mentioned in the invoice ; a survey of the goods, at and an authenticated account of the sales at auction of the goods described in the invoice, being r~even boxes of muslins; all of which were exhibited at the trial. From the survey, &c. it appeared that the goods were damaged by sea-water, and the damage was estimated at 25 per cent.; and they were sold at public auction, for whom it might concern, by order of the Martinique. Where the pee limiusrv pt~ofs of interest nod
    
      
      John Ferrers,
    a witness for the plaintiff, testified, that he is agent for the defendants, for the purpose of stating and adjusting claims against them for losses ; and that the papers exhibited as preliminary proofs, with others, were submitted to him for the purpose of estimating the loss; and that he made a calculation according to the survey of 25 per cent, loss on the original invoice, and delivered his estimate with the papers to the defendants ; and that the statement was made for the purpose ' of ascertaining the amount to be brought into court; and the money accordingly paid into court was a little more, in order to cover any miscalculation.
    Under the direction of the judge, a verdict was found for the plaintiff for a total loss; the amount to be ascertained by persons appointed by the court.
    Wells, for the plaintiff,
    contended, that the preliminary proofs of interest and loss were sufficient. The protest, survey, and other papers. were referred by the defendants to Mr. Ferrers, their agent, for his examination and opinion, and he must have ascertained the interest of the plaintiff, the loss, and the amount of that loss. The defendants adopted the result of this inquiry. They have adopted the acts of their agent, and must be bound by them. They have admitted that the plaintiff had an. insurable interest to the amount subscribed to the po- ; licy, and that there was a loss by the perils of the sea. Again, a payment of money into court, generally, on all the counts in the declaration, is an admission of. the cause of action, as stated in the declaration, and the only question , is as to the amount of damages. He cited 5 Burr. 2640. 1 Term Rep. 464. 2 Term Rep. 275. 4 Term Rep. 579. 2 East, 128. 2 Bos. & Pull. 550. 1 Campbell’s N. P. 557. Peake’s Law of Ev. 202, 203. (215.)
    
      C. I. Bogert and S. Jones, junior, contra.
    The only evidence of the interest is the invoice and bills of par-' cels. There is no proof that the goods were actually shipped.
    Again, there is no evidence as to the cause of the damage ; whether in consequence of bad stowage or not; whether the goods were damaged before they were shipped, or by being put on deck. The survey merely states that there was a loss of at least 25 per cent.; and there is no evidence of a greater loss. Strict proof is required of a technical total loss. A sale at auction is not a criterion of the damage.
    If the plaintiff relies on the adjustment of Mr. Ferrers, he must be concluded by it; and cannot claim beyond the amount stated. But an adjustment is not conclusive.
    
    As to the effect of paying money into court, the English courts appear to have gone as far as to say that it admits the cause of action; but distinguished men in England have thought otherwise. Lord Ch. J. Eyre, in the case of Gutteridge v. Smithy,
      
       held, that after the payment of money into court, there might be a nonsuit, judgment as in case of a nonsuit, demurrer to evidence, a plea puis darrein continuance, in short, that the cause goes on substantially in the same manner as if no money had been paid at all. In Rucker and another v. Pulsgrave,
      
       Sir James Mansfield said he remembered the time when paying money into court was not an admission of any thing. Payment of money into court as for a partial loss does not admit a total loss. The true rule undoubtedly is, that the effect of a payment into court is only to strike so much out of the declaration; it admits only that the plaintiff is entitled to the amount paid into court; but if he claims more he must proceed and prove every thing precisely in the same- manner as if no money had been paid in. Our courts have not adopted the rule contended for by the other side, and are at liberty to lay down such a rule as may be reasonable and convenient»
    
      
      Hoffman, in reply,
    observed, that the preliminary proofs were amply sufficient, and were supported by the evidence at the trial. The goods were necessarily sold at auction, according to the mode of proceeding at Mar-' iinique. It is the universal practice to sell damaged goods at auction, for the benefit of whoever it may concern. It is the constant practice in the port of New-Tork for the wardens to sell at auction all goods which are damaged to the amount of five per cent.
    
    Unless objected to at the time, the acts of Mr. Ferrers, the agent of the defendants, are conclusive. 1 Caines, 444.
    
      
      
        Herbert v. Champion, l Campb. N. P. 134.
    
    
      
       2 H. Black. 374.
    
    
      
       1 Campb. N. P. 557. 1 Taunton’s Rep. 419
    
   Per Curiam.

The proof of interest and loss were sufficient, in the first instance, to entitle the. plaintiff to recover. This is admitted by the act of the agent of the defendants, w'hich is binding on them; and the payment of the money into court was an admission qf the cause cf action, as alleged in the declaratien. The plaintiff is, therefore, entitled to judgment.

Judgment for the plaintiff.  