Rousset v. Insurance Co. of North America

The as~ signee of a policy of insurance takes itliaMe to all defalcatioris, to which it was subject before the assigument. In a suit by the assignee, the underwriters may set offa debt due by and the claim the assignor at the time of effecting the policy, though it be an open p~bcy, a partiat1os~.

(~ ASE for the opinion of the court in substance as lows: The defendants, on the 28th Januar~j 1~99, underwrote a~ policy of insurance in the name of Benjamin 2~Tone8, for 4000 dollars, on the brig Gharlotte, at and from Philadelphia to N. G., and at and from thence to Ma rtinique. At the time of effecting the insurance, None9 was the true owner of the Gharlotte, and she was duly registered in his name. He continued to own her until the 28th November 1799, when he sold her to the plaintiff. On that day he executed a bill of sale of the brig, and delivered into the bands of the plaintiff the above policy of insurance, as bis own, and for his own use ana ■benefit; and on the 21st January 1800, the policy was formally assigned by indorsement. In the month of March 1799 the brig sailed upon the voyage insured, and during the prosecution of it suffered damage from stress of weather, which was repaired in the West Indies during the winter of 1800, and to recover for which this action was brought; but at the time of effecting the policy, and ever since, Nones was indebted to the defendants for premiums on insurance made by them for him on other vessels and cargoes, and on the same vessel for a former voyage; and he was insolvent at the time he sold the vessel, and at the commencement of this suit. The question for the court was, whether the defendants had a right to set off, against the plaintiff’s demand for a partial loss, so much of the debt due to them by Nones, as was equal thereto. If they had, judgment to be entered for the defendants; if not, judgment for the plaintiff. Upon breaking the case, the court intimated an opinion that the precise point had been determined by this court in the case of Gourdon against the same defendants, tried at bar in March 1802, (a) and the set-off sustained. They therefore requested the plaintiff’s counsel to look into it, and see whether he could raise a distinction.