[Present, Chancellors Rutledge and Mabsium,.]

#### David Alexander, and others, *vs.*the Executors of James Muirhead.

The Court opened a stipulation entered into between the insurers and the insured, by which it was agreed that one case should decide all the others.

It appeared that the evidence applicable to one of the cases, was not applicable to the others. A misrepresentation was alleged as to some of the underwriters — notas to others.

*163The Court opened the stipulation so fur as to let t..e insurers have the benefit of a trial before a jury, on the question of misrepresentation.

The case sent down to trial at law, with all the proceedings in .. . . ,. , equity,to be givenm evidence. The injunction continued.

OCTOBER, 1802.

THE bill filed in tbis case was to set aside an agreement entered into by the complainants, with the defendants, by which it was stipulated that all the suits against the underwriters in the policy of insurance in the case then in dispute, should be determined by the decision which might be made on one of them ; and thus to enable the complainants to have a trial on all the cases.

It was found after the loss occurred and after the suits brought, and the stipulation entered into, that different representations, as to the time of the vessels sailing, had been given to different underwriters by the broker and his clerk.

The broker had stated the true time of the sailing to the underwriters, Kirke & Lukens, against whom the suit was brought, which was actually tried, and a verdict found against them. But the brokers clerk, Mr. Watson, had stated a different time to the other underwriters, who have entered into the stipulation bond.

It was supposed this difference, (about 8 days) was so material in a West-India voyage, as -would have made a difference in the risque, and in the premium.

The object therefore was to have an opportunity of having those causes tried in which the misrepresentation had been made, so as to have the opinion of the jury, on the materiality of such misrepresentations, though they were said to be unintentional,

The bill stated that complainants being Marine Insur-rers, subscribed two policies upon the schooner Juno, her tackle, &c. and her cargo; from the port of Charleston to the Havanna, in the Island of Cuba *;*which insurance was effected for the executors of James Muirhead.

That very shortly after the policies were effected, the *164complainants were informed that the Juno and her cargo had been lost: and some time after, they were applied to for payment. That by comparing the-facts stated by the assured, with the information given when the policies were opened, there appeared to be a material misrepresentation. As it was represented to the complainants by J. Watson, the clerk of Denoon the broker who ap* plied for insurance, that the Juno had sailed about the last of Dec. 1800, when she had in fact sailed on the 23d Dec. 1800. That the misrepresentation was of such a, nature as to avoid the policy; as the Juno would have been deemed a missing vessel, and not insured at all, or at an enhanced *premium;*and therefore complainants con* ceive themselves justified in refusing payment. That the executors insisting that no misrepresentation had been made, placed the policies in the hands of H. Bailey, Esq. to commence suits at law. That complainants at *that*time understanding that the policies had been offered by the same agent, and of course that what had been represent* ed to one had been represented to all of the underwriters, concluded that the trial of any one case would substantially try the whole, they therefore entered into an agree* ment in writing, that the determination of one of the cases should decide the whole. And they constituted Messrs. Desaussure and Ford, attornies to confess judgment for each of them, if the verdict should be in favour of the plaintiffs *;*to which stipulation Desaussure and Ford added their engagement to confess the judgment, in the event mentioned.

The complainants supposing the cases to be similar, entered more readily into this agreement to avoid trouble and expence to both *parties;*but it was never intended .by themselves or by plaintiff’s attorney to prevent any evidence that might have been adduced, if they had not signed it. ’

That Messrs. Kirke and Lukens were selected by the insured as the underwriters, against whom to commence 'the suit for actual *trial;*and complainants still unapprized *165of any difference in their cases made no objection. The cause was tried on the 12th June 1801, and David Denoon, the broker was produced by the plaintiff to testi£y that he in person offered the policy and made the true representations to Kirke and Lukens; whereupon a ver-diet was given against Messrs. Kirke and Lukens.

The evidence of Watson, which was peculiarly applicable to the other cases could not be adduced on the trial of Kirke and Lukens.

That a motion was made for a new *trial;*but as by the Tules of law plaintiffs are allowed to enter up judgment and lodge executions to bind, subject to be set aside if a new trial should be granted, the plaintiffs in that case entered up their judgment, and tendered the records in all the other cases to complainant’s attornies, to confess judgment according to the agreement; which they did ; expecting they would be set aside with that of Kirke and Lukens, in case a new trial should be ordered in'that cause.

That a new trial was awarded, and judgment set aside in the case of Kirke and Lukens; but the plaintiffs refused to set aside the others, and the complainants were held bound under judgments from the 9th January, 1802, to the 8th of March last, during which time the case of Lirke and Lukens stood as an issue for a second trial. That the complainants applied for redress, but their confession of judgment was pleaded in bar; that they offered to substitute and try any other case, for that of Kirke and Lukens; but were refused. That the judgments originally confessed are still maintained against the complainants, and they are informed the executions will be Speedily issued. That complainants were justified in requesting such modification, that some other case than ■ Kirke and Lukens’s, should be tried, since in truth their Cases had never been tried; nor the testimony of their witness (Watson) adduced; though so materially different from Denoon’s.

That if the true day of the Juno’s sailing had been represented, complainants should from the nature of the voy*166age and tíie winds that bad prevailed, have deemed her a missing vessel, and would not have insured at all, or but ^01'an in^iancc<^ premium. The bill prays for relief, and for a writ of injunction.

Desaussure and Ford, solicitors.

An injunction was granted at Chambers.

The defendants answer stated that the complainants sub» scribed the policies of insurance mentioned in the bill, and defendants say that they are firmly convinced that Andrew Smylie, who as their agent had the policies effected, made a true representation in writing to the broker, when the vessel had sailed, &c. The defendants admit that accounts of the vessel being lost, arrived in Charleston shortly after the insurance was made. But the defendants had not the most distant idea of the vessel being lost, when the insurance was effected.

The. defendants admit that shortly after the loss of the -Vessel and cargo, they applied to the underwriters for payment of the sums by them sustained, when they or some of them doubted their liability to pay the respective losses, alleging that the vessel had been represented to have sailed about the last of December, when in fact she sailed the *23d*of said month.’

When the underwriters resolved to stand a suit, they proposed that a suit against one should determine the liability of all — and the defendants having agreed thereto, the rule was accordingly signed, wherein the complainants obliged themselves to abide by the decision of some one case to be tried at the then next Court of Common Pleas.

The defendants swear that Messrs. Kirke’ & Lukens’s case was not selected as being more favorable to the defendants than any other on the policies; that they did not know until the trial of the cause, that Denoonthe broker, had himself called on Kirke and Lukens, and that the clerks of Denoon called on the other underwriters to have the policies subscribed ; nor did the defendants give any instruction to their attorney who should be sued.

*167The defendants say it is impossible to answer the allegations of the bill as to the complainant’s views in entering *X*° into the stipulation rule. The defendants swear they made no misrepresentation in any matter relative to the insu-ranee ; that if any was made, it was done through inadvertence or mistake of Mr. Denoon’s clerk : that if a mis- . . representation had been made, the complainants could have been injured only in receiving a few dollars less in the premium. The defendants admit that they on the 12th June, 1801, obtained judgment against Kirke & Lukens as mentioned in the bill; and whereon Kirke & Lukens gave notice of a motion for a new trial in that case, contrary to the stipulation rule. It was known by the complainants and defendants, that the Court of Common Pleas being a Circuit Court, could not grant a new trial, or review a verdict which had been .taken under its authority. The defendants swear they never contemplated a further trial or decision than was to be had in the said Circuit *Court;*that they never would have consented to the stipulation, if they could have foreseen that the verdict vs. Kirke & Lukens was to have been appealed from. The defendants are of opinion that they were entitled by the stipulation to have judgment confessed, and executions issued against all the other underwriters in the policies, and accordingly applied to Messrs. Desaussure and Ford to have the judgments confessed; when they required as a condition of confessing judgments, that executions should be lodged only to bind, until Kirke and Lukens’s case should be finally determined. And as it was understood by all the parties, that after the final decision of Kirke and Lukens’s case, no further opposition should be *made;*the defendants permitted the executions to lie in the sheriff's office without being proceeded on. The defendants admit that the judgments were not set aside, wfym a new trial was ordered in the case against Kirke and Lukens.

The defendants submit thafthis court will not intermed-dle with the judgments and executions so obtained, or order further examination of the causes, which would enable *168complainants a second time to attempt availing themselves *Q£*jjjg s£rict rules of law. The defendants admit that application was made to the presiding judge in the Court of Common Pleas, who, on the 12th of February last, tried and Lukens’s case a second time, for an order to set aside the judgments confessed, but the order was refused, The defendants admit that they were applit d to by complainants to consent that the judgments should be set aside, or some other case substituted in lieu of Kirke and Lu-kens’s which the defendants refused, because they had been already delayed for about a year in the recovery of their just demand; and because they apprehended the complainants might select some case, wherein the broker’s clerk might possibly, through mistake, have made an incorrect representation. The defendants would have considered themselves bound, and would have abided by the decision of the case, if the verdict had been against them. So on the other hand, the complainants should be bound by the decision already given. The answer denies couir bination, &c.

H. Bailey, defendants solicitor.

At the hearing of the cause, the case was argued by Messrs. Desaussure and Ford for the complainants, and by Mr. Bailey for defendants.

The court heard the testimony on the point of the misrepresentation ; some of which was contradictory. There did not seem tobe any fraud in the case ; but it appeared that the broker and his clerk had stattd different times of the vessel’s sailing, to the different underwriters.

The court thereupon opened the agreement or stipula - tion, and sent the case down to be tried by a jury.

Chancellor Rutledge

delivered the decreeof the Court.

The objects of this bill arc two fold.

1st. To set aside the agreement in the bill mentioned, upon the principle that it was, founded in mistake, viz.— That all the cases on the policies -were similarly circumstanced: Whereas the truth is, that they were materially *169different, and evidence applied to that wbicb was tried, (to wit, Kirlte and Lukens’s case) would not apply to the complainants cases ; -nor would the court admit the evidence in favor of the complainants to be adduced, as they . , . *J*were not parties to the suit.

2nd. That this ■ court should set aside the policies for misrepresentation, or send the parties to law. Upon the hearing, the court were of opinion that from the words of the agreement, it was not so conclusively binding as to preclude an investigation of the question. It was therefore fully discussed, and a variety of contradictory testimony was adduced.

As there did not appear to be the smallest tincture of fraud in the case, which would give this court a concurrent jurisdiction with the court of law, and the question is simply a question of fact, whether the representation made to complainants was true or not, material or immaterial, which is properly triable by, a jury; as a court of law is the proper tribunal for cases of this kind, where they are uniformly tried, and complainants may there have complete and adequate remedy: This court would be cautious of encroaching on the jurisdiction of the other court.—

We will therefore direct an issue to try those facts : and that the proceedings in this case be given in evidence at the trial,.and continue the injunction in the mean time.

Chancellor Burke died in the summer of 1802 ; and William Bobein James, then Solicitor of the Northern Circuit, was elected Chancellor, and commissioned on the 14th December,, 1802. The Court then was constituted by Chancellors Rutledge, Marshall and James.