People v. Beigler , 1 Hill & Den. 133 ( 1843 )

jBy the Court,

Nelson, Ch. J.

1. By the second section of the act incorporating the Spring Garden Insurance Company it is provided, that when the whole number of shares in the capital stock shall have been subscribed, the commissioners shall certify to the governor the names of the subscribers, and number of shares by them subscribed, respectively, and the governor shall thereupon issue letters patent, &c., erecting said subscribers into a body politic and corporate, &c.

The objection to the admission of the act of incorporation, and also of the policy of insurance, made upon the trial," was that the condition contained in this section, requiring the commissioners to certify as above to the governor, had not been proved; and hence no legal evidence of the incorporation of the company, and, therefore, no existing body that could be defrauded by reason of the prisoner setting fire to the subject insured.

The answer is, that according to a series of cases heretofore decided in this court, the production of the act of incorporation, and proof of user under it by the corporate body, afford presumptive proof in the first instance of the fact of incorporation; in other words, of a full compliance with all the prerequisites of the statute essential to give operation and effect to its several provisions and conditions (Wood v. The Jefferson Co. Bank, 9 Cow., 194; Fire Department of N. Y. v. Kip, 10 Wend., per Savage, Ch. J.; Utica Ins. Co. v. Cadwell, 3 id., 296; Bank of Michigan v. Williams, 5 id., 478 S. C. in error, 7 id., 539.)

This is, also, the rule of evidence adopted in other states upon the same subject. (Grays v. Turnpike Co., 4 Rand. R., 578; Hagerstown Turn. Road Co. v. Creeger, 5 Harr. & Johns., 122; Angel & Eames, 380.)

2. The evidence in the case, of the employment of Judge Chapin to give the preliminary notice to the company of'the loss was, undoubtedly, sufficient to warrant the court in admitting the written notice offered, and submitting the question of authority to the jury. The proof, indeed, was quite full and satisfactory on the point, and fully justified the finding. x

3. The following clause is found in the policy, namely: h The interest of the assured in this policy is not assignable, unless by consent of this corporation, manifested in writing; and, in case of any transfer or termination of the assured, either by sale, or otherwise, without such consent, this policy shall from thenceforth be void and of no effect.” A similar clause will also be found in one of the conditions. The provision refers, exclusively, to an assignment or transfer of the policy itself; and not of the subject matter, or property insured (Smith v. Saratoga M. F. Ins. Co., 1 Hill, 497; Lazarus v. Commonwealth Ins. Co., 19 Pick., 81.; S. C., 5 id., 76; 1 Phillips on Ins., chap. 1, §7, p. 34, ed. 1840.)

Nor does the assignment of the property insured carry along with it the policy, as an incident thereto. (1 Phillips, 38, and cases.)'

We have looked, attentively, into the affidavits for and against the motion for a new trial, founded upon the alleged irregularities of the jury; and are perfectly satisfied that they afford no ground that will justify our interference.

The charge that the jury indulged in the use of ardent spirits in the course of the trial, is completely rebutted; and the two cases of the absence of jurors satisfactorily explained. In a word, all the imputations attempted with so much apparent industry to be fixed upon the conduct of the jurors, severally, throughout the trial, are satisfactorily explained and refuted. Most of them turn out on investigation to be altogether unfounded in fact; whilst other acts, of themselves of the most innocent and harmless character, are perverted and magnified in a most extrordinary, if not unwarrantable manner. I regret to see that some of the constables attending upon the jury have allowed themselves to be improperly used upon the occasion of getting up some of these unfounded and fabricated charges. ■ One of them, at least, has undertaken to give detached parts of the consultations of the jury after they had retired to deliberate on their verdict, and which turn out to have been altogether a misapprehension on his part.

Some of the deponents have made affidavits on boLth sides, and taken .back and explained away pretty much all the material matters stated in the first instance, on behalf of the motion.

We are all of opinion that there is no ground either in the law of the case, or arising out of the motion founded upon alleged irregularities of the jury, for a new trial.

New trial denied.