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ACTION upon a marine policy of re-insurance, dated

the 2d of May, 1884, on the hull and machinery of the ship State of Florida, lost or not lost. The defendant underwrote the policy for the sum of 501.

The case was tried before Day, J., during Trinity Sittings, 1885, and the jury having been discharged, the learned judge ordered judgment to be entered for the plaintiff.

The facts of the case are sufficiently stated in the judgments of Lord Esher, M. R., and Lindley, L. J., hereinafter set forth.

The defendant appealed.

Sir C. Russell, A. G., and Cohen, Q. C. (F. W. Hollams, with them), for plaintiff.

Sir R. E. Webster, Q. C., and Gorell Barnes, for defendant.

LINDLEY, L. J. This was an action brought on a policy of insurance on the steamship Florida, lost or not lost, subscribed by the defendant, and dated the 2d of May, 1884. The claim was for a total loss by perils of the sea; and the material defense was that the defendant was induced to subscribe the policy by the wrongful concealment by the plaintiffs and their agents of certain material facts known to the plaintiffs or their agents and unknown to the defendant.

The case was tried before Day, J. At first there was a jury, but the jury was discharged by consent; the defendant by his counsel electing not to go to the jury on the question whether the plaintiff themselves concealed any information known to them; the defendant was content to rest his defense on the undisputed facts, and on the point of law arising from them Day, J., gave judgment for the plaintiffs for the whole sum claimed.

The undisputed facts of the case were as follows: The plaintiffs were underwriters and insurance brokers at Glasgow, and were underwriters of a policy on the ship. The policy had been effected by the owners of the ship through Rose, Murison & Thompson, of Glasgow, who were the brokers for effecting insurances upon her. The ship had left New York on the 11th of April, 1884, and was due at Glasgow on or about the 25th. The ship not having arrived, the plaintiffs, desiring to protect themselves from loss, endeavored on the 30th of April to effect a re-insurance. They first attempted to do this through Roxburgh, Currie & Co., but the terms being too high, no insurance through them was then effected. The next day, viz., on the 1st of May, Mr. Low, one of the plaintiffs, saw Mr. Thompson, a member of the firm of Rose, Murison & Thompson, and asked him about the ship, and requested him to telegraph to the London agents of his firm, viz., Rose, Thompson, Young & Co., to effect an insurance for 1,500l. at fifteen guineas; and a telegram to this effect was accordingly sent by Rose, Murison & Thompson, of Glasgow, to Rose, Thompson, Young & Co., of London, between 11 and 12 o'clock. At 12.30 on the same day a Mr. Murray gave Murison important information brought Glasgow by another ship, and which information was calculated to excite suspicion of the loss of the Florida some days previously. It was afterward proved that this suspicion was well founded, and that the Florida had in fact been lost some ten days previously. The information thus communicated by Murray to Murison was communicated to him because Rose, Murison & Thompson were brokers to the ship, and had, as already stated, effected insurances upon her. The information thus obtained by Murison was never disclosed by him to the plaintiffs; and having regard to what took place at the trial, the plaintiffs themselves must be assumed to have known nothing whatever about the matter, and to have concealed nothing themselves.

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Shortly after the above interview Rose, Thompson, Young & Co., of London, telegraphed to Rose, Murison & Thompson, of Glasgow: "Twenty guineas paying freely, and market very stiff-likely to advance before the day is out." This telegram was shown to the plaintiffs. Rose, Murison & Thompson then telegraphed back, not in their own names, but in the names of the plaintiffs, to Rose, Thompson, Young & Co.: "Pay 20." The plaintiffs, being thus put in direct communication with Rose, Thompson, Young & Co., received a telegram back to the effect that nothing could be done for less than twenty-five guineas; but ultimately the plaintiff effected an insurance through Rose, Thompson, Young & Co. for 800l. at twenty-five guineas. This however is not the policy sued on in this action.

On the same 1st of May, and after the plaintiffs had been put in direct communication with Rose, Thompson, Young & Go., and had been told by them that nothing could be done for less than twenty-five guineas, the plaintiffs effected another insurance on the Florida through Roxburgh, Currie & Co. for 500l. at twenty-five guineas. This again is not the policy in this action.

On the next day, viz., the 2d of May, the plaintiffs, through Roxburgh, Currie & Co., effected a further insurance with the defendant for 7002. at thirty guineas, and this is the policy on which this action is brought.

The defendant resists payment on the ground that he was not informed of the facts which had been communicated to Murison by Murray on the 1st of May, and which it was admitted were material to the risk. The plaintiffs' counsel conceded that if the plaintiffs had themselves known of these facts and had concealed them from the defendant, he would not be liable on the policy. The plaintiffs' counsel further conceded that if the policy in question had been effected through Rose, Murison & Co., and they had concealed from the defendant the information given by Murray plaintiffs on the policy. to Murison, the defendant would not be liable to the But the plaintiffs' counsel contended that as the plaintiffs themselves acted in good faith and in ignorance of the facts disclosed to Murison, and did not effect the policy sued on through him or his firm, but through other agents who knew no more than the plaintiffs themselves knew, the plaintiffs are entitled to recover on the policy. This was the view adopted by the learned judge who tried the action.

The defendant, on the other hand, contends that the knowledge acquired by Murison whilst he was endeavoring to effect an insurance for the plaintiffs, must in point of law be imputed to them; and that as between the plaintiffs on the one side and the defendant on the other, the plaintiffs, rather than the defendant, must suffer from the omission on the part of Murison to communicate what he knew to the plaintiffs. In support of this contention certain authorities were referred to which it is necessary to examine.

The first is Fitzherbert v. Mather, 1 T. R. 12. That was an action on a marine policy on a cargo of oats, lost or not lost, belonging to the plaintiff. The policy was effected through a person of the name of Fisher. The oats were bought by Bundock, acting for the plaintiff, from a person named Thomas, who shipped them, and who by Bundock's orders sent a bill of lading and invoice to Fisher. Thomas also wrote to Fisher, stating that the oats had been shipped, and that the vessel on board which they were had sailed. After this letter was written, but before it could have left the town where it was posted, Thomas learned that the vessel was lost. But he said nothing about it, and sent no further letter, and Fisher knew nothing of the loss. He acted bona fide, and effected the insu

rance after he had received Thomas' letter above alluded to. It is not stated that this letter was shown to the defendant, although there is some reason for supposing that it was. But even if it was not, still the information on which Fisher acted was obtained from Thomas, who was directed by Bundock, and it would seem also by the plaintiff, to communicate with Fisher; and Thomas wrote to Fisher expressly that he might insure it he liked. Moreover the plaintiff himself structed Fisher to insure as soon as the bills were sent him. The court construed this as meaning as soon as they came from Thomas. The court appear to have come to the conclusion that the plaintiff referred Fisher to Thomas for information, and thereby in effect through Thomas supplied Fisher with defective information. The court held that the policy was effected by misrepresentation; that Thomas had been guilty, if not of fraud, at least of great negligence; that the concealment by him from Fisher, and therefore from the underwriter, of the loss of the oats, vitiated the policy, although both the plaintiff and Fisher acted in perfect good faith. It is to be observed that Ashurst, J., decided this case on the ground that Thomas' knowledge was to be treated as the knowledge of the plaintiff; but the rest of the court seem to have treated the case as one of direct misrepresentation, though an innocent one so far as the plaintiff and Fisher were concerned.

The next case is Gladstone v. King, 1 M. & S. 34. This was an action on a policy on a ship, lost or not lost. The plaintiffs were her owners, and they claimed to recover damages for an injury sustained by the ship by getting on a rock before the policy was effected. The captain of the ship had written to the plaintiffs after the accident, and before the policy was effected, but he had not alluded to the accident, and the plaintiffs knew nothing of it until after the ship arrived home. The court nevertheless decided that the plaintiffe could not recover. The court held that it was the duty of the captain to inform the plaintiffs of the fact that the ship had been on a rock, and sustained in-❘ jury, and that his omission in this respect, by means of which the owners were prevented from disclosing the accident to the underwriters, operated as an exception of that particular risk out of the policy. Lord Ellenborough, in this case, appears to have been influenced by the consideration of the danger there would be to underwriters if captains were permitted to wink at accidents without hazard to the owners, and so always enable them to throw past losses on insurers. This case certainly went beyond Fitzherbert v. Mather, 1 T. R. 12, for the captain had nothing to do with the insurance, and he was not referred to by the plaintiffs for information. What however he knew was treated as impliedly known to the plaintiffs, although he did not tell them what he knew.

The next case is Proodfoot v. Montefiore, L. R., 2 Q. B. Div. 511. It was an action on an agreement to iuBure some madder belonging to the plaintiff. Rees was the plaintiff's agent at Smyrna to buy and ship madder for him; and Rees had bought and shipped for the plaintiff a cargo of madder on board a vessel, which was lost soon after she sailed. Rees knew of the loss, and might have informed the plaintiff of it by telegram, but he purposely refrained from doing so In order that the plaintiff might be able to insure in ignorance of what had occurred. The plaintiff did in fact insure the cargo before he knew of the loss, and the slip was signed by the defendants in ignorance of what had happened. The court decided against the plaintiff, although he personally had acted in good faith, and had concealed nothing within his personal knowledge. The grounds of the decision are given on page 521, and are as follows: "Notwithstanding the dissent of so eminent a jurist as Mr. Justice Story, we

are of opinion that the cases of Fitzherbert v. Mather, 1 T. R. 12, and Gladstone v. King, 1 M. & S. 35, were well decided; and that if an agent whose duty it is, in the ordinary course of business, to communicate information to his principal as to the state of a ship and cargo, omits to discharge such duty, and the owner, in the absence of information as to any fact material to be communicated to the underwriter, effects an insurance, such insurance will be void, on the ground of concealment or misrepresentation. The insurer is entitled to assume, as the basis of the contract between him and the assured, that the latter will communicate to him every material fact of which the assured has, or in the ordinary course of business ought to have, knowledge; and that the latter will take the necessary measures, by the employment of competent and honest agents, to obtain through the ordinary channels of intelligence in use in the mercantile world, all due information as to the subject-matter of the insurance. This condition is not complied with, where by the fraud or negligence of the agent, the party proposing the insurance is kept in ignorance of a material fact, which ought to have been made known to the underwriter, and through such ignorance fails to disclose it. It has been said indeed that a party desiring to insure is entitled on paying a corresponding premium, to insure on the terms of receiving compensation in the event of the subject-matter of the insurance being lost at the time of the insurance, and that he ought not to be deprived of the advantage which he has paid to secure, by the misconduct of his agent. But to this there are two answers: First, that as we have already pointed out, the Implied condition on which the underwriter undertakes to insure-not only that every material fact which is, but also every fact which ought to be, in the knowledge of the assured, shall be made known to him-is not fulfilled; secondly, as was said by the court in Fitzherbert v. Mather, 1 T. R. 12, where a loss must fall on one of two innocent parties through the fraud or negligence of a third, it ought to be borne by the party by whom the person guilty of fraud or negligence has been trusted or employed. By thus holding, we shall prevent the tendency to fraudulent concealment on the part of masters of vessels and agents at a distance in matters on which they ought to communicate information to their principals,jas also any tendency on the part of principals to encourage their servants and agents so to act."

The last authority which it is necessary to refer to is Stribley v. Imperial Marine Ins. Co., 1 Q. B. Div. 507. It was an action by the owners of a ship for a total loss; and one point raised was, whether the fact that the captain had not informed the plaintiff, and that he therefore had not informed the defendants of the fact that the vessel had encountered a storm and lost an anchor before the policy was effected, vitiated the policy. It was held that it did not. I understand this decision as in substance similar to Gladstone v. King, 1 M. & S. 35.

The principle on which Fitzherbert v. Mather, 1 T. R. 12, and Gladstone v. King, 1 M. & S. 35, are based has been much discussed, and as stated by the court in Proudfoot v. Montefiore, L. R., 2 Q. B. Div. 511, Mr. Justice Story, in Ruggles v. General Interest Ins. Co., 4 Mas. 74, declined to follow it. His view however is opposed to that of the Supreme Court of the United States (12 Wheat. 408), and to that of Phillips, § 549, and Duer, and has not been adopted in this country. It appears to me to be established by the cases to which I have referred, that in order to prevent fraud and willful ignorance on the part of persons effecting insurances, no policy can be enforced by an aseured who has been deliberately kept in ignorance of material facts by some oue, whose moral if not legal

duty it was to inform him of them, and who has been kept in such ignorance purposely, in order that he might be able to effect the insurance without disclosing those facts.

The person who allows the assured to effect a policy under such circumstances as I am now supposing does not act fairly to the underwriters, and although such person may owe them no legal duty, the assured cannot in fairness hold the underwriters to the contract into which they have in fact entered under these circumstances. The assured may himself be perfectly innocent when he effects the insurance; but as soon as he is informed of the facts it ceases to be right on his part to take advantage of the concealment without which that insurance would not have been effected. In other words, the assured cannot take advantage of the ignorance in which he has been improperly kept by one who ought to have told him the truth. If it was the legal duty of the person who has so kept him in ignorance to inform him of the facts concealed, it is, I think, clearly settled that he cannot avail himself of his own personal ignorance of them. But if there is no such legal duty to him, the same consequence appears to me to follow if there was a moral duty to tell him the truth. He may exclude all legal duty to be informed of what has occurred by giving instructions dispensing with information; and such instructions may be given for reasons which exclude all inference of fraudulent intent on his part. But in such a case it appears to me that he cannot enforce a contract of insurance obtained by such unfair means as those supposed.

In my opinion, 2 Duer, 647, and 1 Phillips, § 537, are both right in contending that fraud on the part of the assured is not essential to discharge the underwriters on the ground of misrepresentation or concealment. It is a condition of the contract that there is no misrepresentation or concealment either by the assured or by any one who ought as a matter of business and fair dealing to have stated or disclosed the facts to him or to the underwriter for him.

If this view of the law be correct, it follows that the plaintiffs cannot recover in this action. The omission of Murison to tell the plaintiffs what he knew, and the remarkable course his firm took of discontinuing negotiations themselves, and of putting the plaintiffs in direct communication with Rose, Thompson, Young & Co. are only to be explained upon the theory that the plaintiffs were purposely kept in ignorance, in order that they might insure on more favorable terms than they otherwise might have done. It appears to me to have been clearly Murison's duty to the plaintiffs to give them the information he had, so that they might, by disclosing what they knew and increasing their offer, cover the increased risk. Murison was not a stranger under no obligations to the plaintiffs. He was employed by them to effect an insurance, and whilst so employed he acquired important knowledge respecting the ship. I cannot doubt that it was his duty to disclose this to the plaintiffs, and not to let them go on to insure in ignorance of what it was of the utmost importance they should know.

The plaintiffs cannot, in my opinion, obtain any advantage from this breach of duty to themselves. As between themselves and the defendant, the plaintiffs are the persons to suffer from the mistaken view their own agents took on their own duty. Their conduct vitiates this policy, although it was not effected through them, nor until after their agency had ceased; for had it not been for their breach of duty the policy could never have been effected for the premium which the plaintiffs paid.

I have not based my judgment on the maxim that the knowledge of an agent is the knowledge of his

principal, for like the master of the rolls, I distrust such general expressions, which are quite as likely to mislead as not. But for the reasons I have stated, the decision of Day, J., was in my opinion erroneous, and judgment ought to be entered for the defendant, with costs here and below.

LOPES, L. J. I have arrived at the same conclusion as Lord Justice Lindley, but the case is so important that I wish to give a separate judgment stating my

reasons.

It is unnecessary to state the facts of this case. They have been already fully stated, and are undisputed. I purpose shortly to state the conclusion at which I have arrived after much consideration, and my reasons for that conclusion.

It is clear law that if the policy sued in this action had been effected through the agents to whom the material communication was made, and who suppressed it, the assured, thought ignorant of the communication, could not have recovered from the underwriters, because there had been a concealment of a material fact by the agent of the assured. The knowl edge of the agent in such circumstances would be the knowledge of the principal--a phrase which I understand to mean that the principal is to be as responsible for any knowledge of a material fact acquired by his agent employed to obtain the insurance, as if he had acquired it himself.

In what does the present case differ from the one above stated, where the law is clear? It differs only in this, that here the policy was effected not through the agent, who had acquired and concealed the information in order that his principal might effect an insurance upon favorable terms, but through another agent subsequently employed, who as well as his principal was innocent of any previous concealment.

The plaintiffs' contention is that it is only the con cealment of material facts by the agent who effects the policy that vitiates it, not the concealment by any other agent. And the learned judge in the court below so held. The question raised seems to be whether if an agent employed to effect an insurance purposely omits to communicate material facts, which came to his knowledge during his employment (facts which it was his duty to communicate to his principal), it is a conceaiment which will avoid an insurance effected by an innocent principal through another agent, ig norant of any such concealment. Authority and principle compel me to answer that question in the af firmative.

I will first deal with the authorities. The earliest is Fitzherbert v. Mather, 1 T. R. 12. In that case it seems to have been held that where the conduct of the assured was wholly free from blame or suspicion, his policy was avoided by the concealment and virtual misrepresentation of an agent who had no authority to procure or direct the insurance. He was the consignor and shipper of the goods insured. The judges thought the letter was a misrepresentation. The court clearly thought that it was the duty of the agent to have given information of the loss. The concealment of the agent was the ground of the decision. The assured was held to be affected by the concealment of au agent other than an agent employed to obtain an in

surance.

The next case is Gladstone v. King, 1 M. & S. 35. The insurance was on a ship on a specified voyage. It was made after the risk had commenced, but by its terms (lost or not lost) it related to their commencement, and covered all prior losses. When the policy was effected, no such loss was known to the owners to have occurred; but a partial loss had in fact occurred, which the master had neglected to com municate, although the information might have been given in time to have governed the terms of the insur

ance.

He had in fact written to his owners after the loss had happened, and they were in possession of the letter when they effected the policy; but it contained no mention of the loss, nor does it appear from the report that this letter was shown to the underwriters, or that any representation was made to them founded upon its contents. In respect to them the case was simply that of the concealment of a loss, which was unknown to the assured, but which their agent was bound to communicate, and might have communicated-and it was so treated by all the judges. It was for the recovery of the partial loss that the action was brought, and it was the opinion of the court that the concealment of the master, although not being frandulent, it did not operate to avoid the policy, yet exonerated the underwriters from the payment of the loss. Lord Ellenborough remarked that unless this rule was adopted the master would be instructed to remain silent in all similar cases, and then the underwriters would incur the certainty of being rendered liable for all antecedent average losses that they could not prove to have been known to the assured.

These decisions establish that the knowledge of an agent not authorized to insure may be imputed to his principal, so that his silence shall have the effect of a concealment avoiding the policy and exonerating the underwriters from the loss. They seem to me a fortiori cases to the present. The master had nothing to do with the insurance. His knowledge was however imputed to the plaintiffs, although he did not communicate to them what he knew.

"That if an ageut whose duty it is in the ordinary course of business to communicate information to his principal as to the state of a ship and cargo, omits to discharge such duty, and the owner, in the absence of information as to any fact material to be communicated to the underwriter, effects an insurance, such insurance will be void on the ground of concealment or misrepresentation." Then come these very important words: "The insurer is entitled to assume, as the basis of the contract between him and the assured, that the latter will communicate to him every material fact of which the assured has, or in the ordinary course of business ought to have, knowledge, and that the latter will take the necessary measures by the employment of competent and honest agents to obtain through the ordinary channels of intelligence in use in the mercantile world all due information as to the subject-matter of the insurance. This condition is not complied with when by the fraud or negligence of the agent, the party proposing the insurance is kept in ignorance of a material fact which ought to have been made known to the underwriter, and through such ignorance fails to disclose it." The case we are now considering is a much stronger case than Proudfoot v. Montefiore, L. R., 2 Q. B. Div. 511, for here the agent, who designedly withheld material information, was at the time employed by the assured to effect an in

surance.

The case of Stribley v. Imperial Marine Ins. Co., 1 Q. B. Div. 507, does not appear to me to carry the matter beyond the cases already cited.

The authorities therefore support the conclusion at which I have arrived.

I fail however to see why in principle there should be any distinction between the case where the insurance is effected by the agent who obtained the information, and when it is effected by another agent employed about the insurance.

In both cases the assured, by a suppression of what ought to have been communicated to him, obtains an insurance which he would not otherwise have got. The underwriters are as much misled in the one case as the other. In both cases there is misconduct on the part of the agent of the assured; in both cases the underwriters are free from blame. It seems to me unjust and against public policy that a person, through whose agent's fault the mischief has happened, should profit to the detriment of those who are in no way in fault.

On the ground of the implied contract between the parties, I am of opinion too that the defendant is entitled to succeed. The concealment by an agent who is bound to give the intelligence violates the undertaking on which the contract is founded, in the same way as a similar concealment by a principal. The underwriter has a right to believe, when he accepts the risk, that he is placed in possession of all the informa

Proudfoot v. Montefiore, L. R., 2 Q. B. Div. 511, is a comparatively recent case. The plaintiff, in Manchester, employed an agent at Smyrna, who purchased and shipped for him there a cargo of madder, of which he advised him on the 12th of January, and forwarded the shipping documents on the 19th. The ship sailed on the 23d of that month, and went ashore the same day, whereby there was a total loss of the cargo. Next day the agent had intelligence of the loss, and might have telegraphed the casualty to his princigal immediately, but refrained on purpose that his principal might insure the cargo. On the 26th, which was the earliest post day for England, he announced the loss to his principal by letter. Meanwhile, before the arrival of the letter, but after the loss had been posted in Lloyd's List, the principal effected an insurance on the carge. It was held that the policy was void on the ground of concealment of material facts known to the agent, and therefore known to the principal. All the cases, both English and American, were reviewed, and the judgment of the court, consisting of Cockburn, C. J., Blackburn and Shee, JJ., was delivered by Cockburn, C. J., and unless that judgment is overruled it is clear that an assured cannot recover on a policy when he has designedly been kept in ignorance of material facts by somebody whose duty it was to communicate them. The chief justice in his judg-tion which the assured himself has, or which it was ment says (p. 519): "There was no fraud or undue concealment by the plaintiff" (the assured) "of a material fact within his personal knowledge. On the other hand, it is clear that the fact of the loss of the vessel might have been communicated to him by Rees by means of the telegraph, but was purposely kept back by the agent, for the fraudulent purpose of enabling the plaintiff to insure. We think it clear, looking to the position of Rees, as agent to purchase and ship the cargo for the plaintiff, that it was his duty to communicate to his principal the disaster which had happened to the cargo; and looking to the now general use of the electric telegraph, in matters of mercantile interest, between agents and their employers, we think it was the duty of the agent to communicate with his employers by this speedier means of communication." Further on the chief justice says (p. 521):

the duty of any agent of his to communicate. The underwriter does not intend to insure risks concealed by some agent employed to obtain an insurance, who ought to have communicated them to his principal, any more than he does risks concealed by the agent actually effecting the insurance, or concealed by the principal himself.

It is admitted that freedom from misrepresentation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance of the condition the assured cannot enforce the contract; but it is insisted also that if the misrepresentation or concealment is by an agent, it does not vitiate the policy where the principal is innocent, unless the agent be the agent employed to effect the insurance. I cannot accede to that. I think there must be a free

dom from misrepresentation or concealment, not only so far as the agent by or through whom the policy is effected is concerned, but in respect of any agent employed by the assured to obtain the policy, whose duty it was to communicate material facts to his principal.

Any more limited construction, to my mind, would be against public policy, against principle, contrary to authority, and would tend to encourage fraud and collusion in transactions where uberrima fides is essential.

The appeal, in my opinion, must be allowed. Appeal allowed.

Lord Esher, M. R., dissented.

CRIMINAL LAW-EVIDENCE-PRISONER'S TESTIMONY AT CORONER'S INQUEST.

NEW YORK COURT OF APPEALS, OCT. 5, 1886.

PEOPLE V. MONDON.*

Defendant was an Italian laborer, having an imperfect understanding of the English language. He was under arrest, without warrant, charged with murder. A coroner's inquest was being held. The prisoner was taken by the sheriff, in whose custody he was, and whose power he could not resist, before the coroner's inquest then engaged in an investigation against himself. He did not go there voluntarily. He was sworn by the coroner as a witness: was without counsel, and without means to employ counsel. He was not informed that he could not be compelled to be a witness against himself, nor that he need not give an answer which would tend to criminate himself. Held, that the prisoner's attendance before the coroner was compulsory, and the testimony taken was involuntary and inadmissible under the Constitution.

A

PPEAL from judgment of General Term, Fourth Department, affirming a judgment and conviction of defendant of murder in the first degree. The opinion states the case.

H. Clay Hall, for appellant.

Eugene E. Sheldon, for respondent.

RAPALLO, J. The appellant was convicted at a court of oyer and terminer, held in Herkimer county, in May, 1885, of the crime of murder in the first degree, for killing one John Wishart, and was sentenced to death. On appeal to the Supreme Court, the conviction was affirmed at a General Term, held in Syracuse, in November, 1885. Boardman and Hardin, JJ., delivered opinions for affirmance, and Follet, J., delivered a dissenting opinion. The case now comes before us on appeal from the judgment of affirmance.

Numerous exceptions were taken at the trial, and after a careful examination we concur in the conclusion reached by the Supreme Court as to all of the points raised on behalf of the appellant, except the one upon which the learned judges who heard the case at General Term differed in opinion, and we shall therefore confine our discussion to that point.

The question in difference was the admissibility in evidence upon the trial of the prisoner of statements alleged to have been made by him on his examination under oath at the coroner's inquest held upon the body of the deceased after it had been found, which was a considerable time subsequent to the killing. The evidence connecting him with the crime, aside from his alleged confession to members of his family, and afterward to the officer having him in custody, was circumstantial, but no question as to its sufficiency arises here. After the finding of the body of the deceased * Reversing 38 Hun, 188.

the defendant was arrested, without warrant, as the suspected murderer. While he was thus in custody the coroner impanelled a jury and held an inquest, and the defendant was called as a witness before the inquest, and was examined by the district attorney and by the coroner. The prisoner was an ignorant Italian laborer, unfamiliar with the English language. He was unattended by counsel, and it does not appear that he was in any manner informed of his rights, or that he was not bound to answer questions tending to criminate him. He was twice examined; on the first occasion the examination was taken by questions put either by the district attorney or by the coroner, and the result written down by the coroner, who then read the evidence over to him, line by line, and asked him if he understood it, and if it was the truth, and he said it was, and the coroner then re-swore him to the deposition.

The coroner testifies that he came to the conclusion that the defendant did not understand English well enough to be examined; that on taking the evidence, which was signed by him, no interpreter was used; that the interpretor was used on a subsequent day; that the defendant made no corrections or suggestions while the deposition was being read to him; that he (the coroner) became satisfied, after taking defendant's testimony on the first day, that it ought to be taken through an interpreter, and thought they might get it a little better and a little fuller.

The court thereupon reserved its decision as to the admissibility of evidence until the opening of the court on the following day.

The coroner was then asked various questions as to what the defendant had stated at the coroner's inquest as to his having been on the ground where the body of deceased was found; as to when he had last seen the deceased alive; as to where deceased was then going; whether he was alone; as to the whereabouts of the defendant on the day the deceased disappeared; as to threats made by deceased to have the defendant arrested for marrying the daughter of deceased while having another wife living; as to disputes between deceased and defendant on that subject, and other questions tending to establish the theory of the prosecution as to the motive of the defendant in committing the murder. Some of the statements of the prisoner on his examination, as testified to by the coroner, confirmed the theory of the prosecution as to the hostile feeling between the prisoner and the deceased, and the quarrels which had taken place between them, but the others were denials of implicating circumstances.

Each of the questions thus put to the coroner, as to what the prisoner had testified to was specifically objected to. The objections were overruled, and exceptions duly taken.

The deposition taken by the coroner, as before stated, was not offered in evidence, but the coroner, in giving his testimony, referred to it to refresh his recollection with respect to the testimony given by the defendant on the inquest.

The coroner also testified that a club which was found near the body of deceased was produced at the inquest, before the taking of testimony began; that the defendant had then been informed that he was charged with the murder of the deceased, and on the production of the club exclaimed, "Me no kill old John with that club," and appeared nervous and excited.

It thus appeared that when the prisoner was called upon to make his statements on oath before the coroner, he stood in the attitude of an accused person, and was required to answer for himself, as a party, and not as a mere witness to aid the coroner in investigat ing the cause of the death of the deceased. The cause

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