Rousset v. Insurance Co. of North America

Tilghman C. J. This cause comes before us on a case stated. Benjamin Nones had an insurance effected on the brig Charlotte. He afterwards assigned the policy to the plaintiff, and then became insolvent. There was a partial loss, concerning which there is no dispute. The only question is whether the defendants can set off against the plaintiff, a debt due from Nones at the time the policy was underwritten. The court thought it unnecessary to hear the counsel for the defendants; because they considered this point as having been settled in the case of Gourdon (for the use of his assignees) against The Insurance Companij of North America, tried in bank at March term 1802. The charge of chief justice Shippen, delivered with the approbation of all the judges, established a principle decisive of the question now before us: that is to say, that a policy <5f assurance was to be considered as other dioses in action, which are not assignable by the common law, but only in equity; and consequently the assignee takes it liable to- all defalcations to which it was subject before the assignment. That case was fully argued, I have readjudge Teates's manuscript note of it, and find that the arguments urged by Mr. Le\ y in this case, were then brought forward by the counsel for Gourdon's assignees. Upon the authority of that case, therefore, the court are now of opinion that the defendants are entitled to the set-off for which they contend. Smith J. I am of opinion that the defendants are entitled to the set-off claimed, under the practice between the assured and [436] the underwriters in the city of Philadelphia. I do not need the aid of the decision in Gourdonls case to warrant this opinion; it is founded on the common course of mercantile transactions. Per Curiam, Judgment for defendants.