the assured binds himself by the acceptance of the policy; and, as the terms of the contract, in relation to partial losses, printed in the policy, are easily understood, there can be no hardship to an honest man, in adhering to them punctiliously; the rogue will surely complain, so that he may at least appear honest and indignant. A departure in one instance, "would be recorded as a precedent; and many an error, by the same example, will rush into" the business of adjusting claims, and so many difficulties would thus arise, that there might as well be no rules in existence; for, even with the best discretion and skill on the part of insurers, in the exercise of their duties under this part of the contract, they are too often compelled to pay for repairs, as indiscriminately, as if they had agreed to keep the vessel in complete order, under any and every circumstance. There are alterations required, most assuredly, as to parts of the practice of settling claims, which would operate more fairly and fully as an indemnity; and, when frauds are decreased, the insurers can well afford to make such changes, as they are, and should always be, inclined to maintain the character of the policy of insurance as a contract of perfect indemnity.

Policies by vessel or vessels have given rise to another species of fraud, which has been much practised. Open policies for twenty, fifty, or one hundred thousand dollars, are procured by persons receiving many consignments. The amount to be insured by any one vessel is limited; and it is agreed that the assured shall give immediate information to the insurers as to the shipment or receipt of the invoice, in order that the amount may be endorsed upon the policy. As the advice of shipment and the invoice very often arrive together, and as the goods are safe, the assured is too apt to forget to give the insurers notice to make the endorsement on the policy, and the premium of insurance is thus unjustly detained from them, whilst it is hardly probable that there is an instance on record where the assured forgot to make the endorsement and claim when the goods were lost or damaged. Claims for return premium are often falsely made under these contracts, but it oftener happens, that the assured continues to hold the policy rather than make an affidavit that all the goods actually received have been endorsed on the policy, and he will get such a privilege for an extension of time as will enable him to fill up the policy by such endorsements as are unavoidable. To increase the perplexing difficulties of this kind of insurance, the goods are often consigned "to order," and though the insurers may, by the inspection of newspapers and freight lists, and by means of assistance from the custom house, discover and endorse many of these stray risks, yet a vast number go clear, and pay no premium; and, with the exercise of the greatest vigilance, the dishonest practice will continue until the underwriters adopt some harsh measure, or abolish the system entirely. The plan of issuing these policies commenced at a time when, as there was a greater competition, it was deemed necessary by some underwriters, to offer increased accommodations to the assured; and what was once a mere convenience, or inducement held out to get premiums, has now become so strongly engrafted upon the business of insurance as to be almost immoveable, although there are many serious objections besides that of the fraud to which it has given rise. Such policies are decreasing, and will continue to be less often granted, until the old system be restored: the sooner the better.

ren.

The last of the frauds to be described, are those by which underwriters suffer from the plundering wreckers upon our coast. They are committed less often than in former times, when magistrates and preachers did not disdain to insist on having a fair chance with their less potent brethIt is by no means probable that the inhabitants of our sea-board ever contrived to cause the loss of life with a view to plunder; but, it is confidently believed, that they have caused losses of vessels by false lights, etc., although no instance has been clearly proved. These wreckers, luckily, do not harbor the superstitious fears as to saving life from wrecks, attributed by Sir Walter Scott to their less fortunate brethren on the coast of Zetland; for, we have innumerable instances of the hardihood of our "Jerseymen" and others in saving life under the most perilous circumstances. But, as to stealing, too many of them exceed in rapacity the most zealous of the Zetland tribe, who, as Scott says, looked upon the wreck as a "godsend," and as a mark of "especial favor from on high; which favor would not be repeated if the old and helpless were not charitably assisted to a fair share." Men and women owning property, and who would scorn to steal even a rusty nail from a neighbor, have had neither conscience nor fear as to robbing wrecks which were cast upon their coast; to rob a dead body was, with them, no crime. For some years past these piracies have been less frequent; and it depends upon the underwriters themselves, whether they shall be again committed with that impunity, which allowed of the stealing of at least $20,000 worth of goods from one ship, within sixty miles of New York, without a single arrest. On the coast of North Carolina, the pirates generally steal as much as they please. Nothing will prevent the recurrence of these bold thefts, but the prompt arrest and punishment of every thief, at any sacrifice or hazard; and there are good men and good laws upon our coast, to insure the execution of justice, if their aid be required. As an auxiliary to the prevention of theft, the wreckers should be well and even liberally paid for every service. A parsimonious doling out of a miserable pittance to workmen will always be, as it has in some recent cases been, the cause of great dissatisfaction, so that honest men will not work, and some of the worst class of men will be hired in their places, and there will be more stolen from the wrecks than would be necessary to pay the honest men for their labor ten fold. There never was and never will be any real saving by such a course at a wreck. Underwriters would know this better, if they would occasionally surprise themselves by a visit to the sea coast after their agents have returned and made their reports.

The policy of insurance, which now makes the underwriter liable for barratry of the master and mariners, should be so amended as to cover only the innocent shipper of cargo in case of loss by fraud. The Boston policies have for a long time covered "barratry of the master and mariners, unless the assured be the owner of the vessel." In New York, the owner of a vessel and cargo may contrive with his captain for a fraudulent loss, and, although the fraud may be discovered, the insurers, under the risk of barratry, would be made to pay, unless his collusion with the captain could be proved. The effect of the Boston policy is, to keep the owner up to his liability in the selection of an honest captain, for against the acts of a rogue he cannot be indemnified.

As to the prevention of petty frauds: perhaps a clause might be introduced into the policy, which would vitiate every claim, however

honest in part, if it were clearly proven that any portion, be it even the merest trifle, were founded in a wilful fraud. A provision of this kind exists in fire policies, and in many instances has proved very effective. And as to the prevention and detection of frauds in general, great assistance might be derived from an interchange, with every Board of Underwriters, of a list of all the frauds, large and small, attempted or known of by each company, and reported twice a month to the head-quarters to be agreed upon; it being understood that an alliance should be formed, forbidding the issuing of a policy to any individual who may be clearly proved guilty of a fraud. The expense of such an arrangement would be a trifle; for as it is, every company has to guard itself, and there is but little difficulty in perpetrating any, fraud which may be designed. But the best of all means to prevent fraud is the unceasing exercise of vigilance-vigilance among underwriters; and, among honest merchants, vigilance! Without vigilance, every plan must fail! And be it understood, that the frauds of the rogues are, for the future, apparently to be perpetrated in good vessels; old vessels are too much suspected; and, although many of the heaviest of the honest losses which have fallen upon our underwriters have been by ships of the first class, there is little doubt that good ships will still be readily insured, and the frauds of the swindlers will be the more easily covered.

The statements herein offered are voluntary. That they are true can be proved, if necessary. No solicitation, no cause, but a sense of duty, could have brought them forth. If any individual thinks he sees himself, or his case, too closely described, let him go and sin no more; he will have nothing to fear. As the object was to confer a public benefit, not to inflict a private injury, so no malice should be inferred; at all events, as no favor or affection should be sought from rogues, so their enmity should not be dreaded. And it is believed that there are too many concerned in the base practices of deceit, cheating, and imposition, collusion, misrepresentation, equivocation, concealment, bad faith, and perjury against insurers, for any person to imagine that he is specially alluded to; none will, therefore, "be offended, but those who are too conscious of their culpability: QUI CAPIT ILLE FACIT.”

ART. III.-SUGGESTIONS ON THE LAW OF AUCTIONS

No. III.

OF AN AUCTIONEER'S RIGHT TO PURchase.

THE reason why an agent for the purpose of selling, cannot generally become the purchaser, is obvious; he cannot have a single eye to the interest of his principal. Courts of equity are disposed to adopt the principle of the civil law, that the same person cannot be both buyer and seller. When an ineffectual attempt at public sale has been made, the auctioneer may purchase from his employer the property he was engaged to sell, for his agency has terminated; but while his employment continues he cannot purchase, on the ground, that being invested with a

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trust, he is disqualified from placing himself in a situation incompatible with the honest discharge of his duty. If such a purchase can be sustained, it must be where the agent makes it fully appear, both that he furnished his employer with all the knowledge he possessed, and also that he was known to be the purchaser. The rule is, that an agent shall not purchase from himself.

RIGHTS OF VENDOR AGAINST PURCHASER AT AUCTION.

A vendor, after contracting to sell, has a lien on the goods, which entitles him to the possession until the price is paid, unless it has been agreed between the parties that a certain time shall be given for payment. Although when a bargain is struck, the property in goods is transferred to the purchaser, and that of the price to the seller, yet the vendee cannot take them until he tenders the price agreed on. The payment of earnest-money does not remove the lien, but only diminishes it so much.

There does not appear to be any case of stoppage in transitu between vendor and vendee upon a sale at auction; but the ordinary rules of law would apply. The right of resuming the possession of property by the vendor, during the course of its conveyance to the vendee, in the event of the insolvency of the latter, is called stoppage in transitu. This is an interesting topic, to which we can but allude at this time; we may, however, add, that this right of stoppage does not proceed upon the ground of rescinding the contract, but it is an equitable lien, adopted for the purposes of substantial justice; this right is not taken away by a part payment of the price of the goods by the consignee.

The vendor may bring an action for the price of goods sold, against the purchaser, or it may be brought by the auctioneer; but it may be resisted in the latter case, if the auctioneer has committed an act which would have invalidated the contract if it had proceeded from the vendor. If a person purchase goods of a factor, knowing him to have made the sale in that capacity, in an action by the factor for the price, the defendant cannot set off a demand which he may have against the plaintiff; but if an auctioneer does not disclose the name of his principal, but delivers the goods in his own name, and the purchaser does not know that he is acting as agent, the buyer would probably have a right to set off a debt due from the auctioneer, in an action brought against him by the principal for the price of the goods. If, however, he should disclose the name of his principal before payment, or before the whole of the goods were delivered, although he did not disclose his agency at the sale, the effect would be the same as if the name of his principal had been stated before the sale. If an auctioneer become bankrupt after he has effected a sale, the vendor may maintain an action against the purchaser for the purchase-money, if it has not been paid to the auctioneer; or if the vendor gives notice to the purchaser not to pay it to the auctioneer, and the purchaser, notwithstanding such notice, subsequently pays it to the auctioneer, he will be liable to pay it to the principal also.

When the contract for the sale of goods is completed by the assent of both parties, the property in the goods is so far transferred to the vendee, as to give him a complete right of property in them, and a right to the possession of them on payment of the price agreed upon, but he cannot take the goods until he tenders the price. It is difficult to ascertain the

particular period when the property in goods passes from the vendor to the vendee. What is sufficient to vest the property in the vendee, is not always sufficient to deprive the vendor of his lien for the price; what might be sufficient, in the absence of insolvency, to confer a right to possession, is not always sufficient to deprive the vendor of the right of stoppage in transitu. This point is of importance in cases where the property is destroyed. It appears to be well settled, that a purchaser, from the time of the purchase, is in equity owner of the estate; that he must pay the consideration money, if the estate be injured or destroyed by fire or otherwise, between the time of the contract and the conveyance; and upon the same principle, that he will be entitled to any benefit which may accrue to the estate during the same period. Goods sold remain at the risk of the seller, where something remains to be done, as between the buyer and seller, as for the purpose of ascertaining either the quantity or price of the article sold; because there is no delivery, the property does not pass though the price be in part paid; if there be a part delivery, the other part not yet ascertained will not pass. There need not be an express agreement that something farther shall be done; it is enough if it appear, from the circumstances of the case, to be necessary. But when the goods are sold, and nothing farther remains to be done to them by the seller, the property in such goods will be changed by the sale, and they will be at the risk of the purchaser.

The statute of New York in relation to principals and factors, has materially changed the law formerly applicable to them; in certain cases it deems the agent or factor to be the true owner, so far as to give validity to his contracts; but subjects him to a penalty if he dispose of property entrusted to him, to his own use, with the intent to defraud the true owner. The statute impairs the common law right of owners; for they might follow their property into the hands of third persons, where it had been transferred or disposed of by an agent contrary to his instructions or duty, and reclaim it unconditionally.

OF THE RIGHTS OF THE PURCHASER AT AUCTION.

If a deposit is paid on a purchase, and the owner fails to comply with the conditions of sale, the purchaser may either affirm the agreement by bringing an action for the non-performance of it, or he may disaffirm the agreement, and maintain an action against the vendor for his money. Where a person buys at auction several lots, it is an entire contract; that is, the several lots are purchased with the view of making them a joint concern; and if the vendor fails in making a title to any one of the lots, the purchaser may refuse to take the others.

If a chattel be sold with all faults, and yet there are latent defects which it was impossible for the purchaser to discover by means used by the vendor, the vendee may set aside the contract.

An unconditional contract of sale, when once made, cannot be dissolved, except by the consent of the parties to it, or for fraud. But at a sale by public auction, when no credit is given, if the buyer depart without paying for or receiving the goods by delivery, the contract may be treated by the auctioneer as null, and he may sell the goods to another. But where the contract is complete, if the buyer refuse to take and pay for the goods purchased by him, the vendor, to enforce payment of the