CASES 
 
 ARGUED AND DETERMINED 
 
 IN 
 
 THE COURT 
 
 FOR 
 
 THE TRIAL OF IMPEACHMENTS 
 
 AND 
 
 CORRECTION OF ERRORS, 
 
 THE STATE OF NEW-YORK. 
 
 BY GEORGE CAINES, 
 
 COUNSELLOR AT LAW, AND REPORTER TO THE STATE. 
 
 VOL. I. 
 
 1'iinted and published by I. Rilcy. 
 1810.
 
 DISTRICT OF NEW-YORK, ss. 
 
 BE IT REMEMBERED, That on the eighteenth day of January, in the 
 twenty -ninth year of the Independence of the United States of America, 
 GEORGE CAINES, of the said district, hath deposited in this office the 
 title of a book, the right whereof he claims as author, in the words and 
 figure following, to wit ; 
 
 " Cases argued and determined in the Court for the Trial of Impeach- 
 ments and Correction of Errors, in the State of New-York. By GEORGE 
 CAINES, Counsellor at Law, and Reporter to the State. VOL. 1." 
 
 IN CONFORMITY to the act of the Congress of the said United States, enti- 
 tled, " An act for the encouragement of learning, by securing the copies of 
 " maps, charts and bucks, to the authors and proprietors of such copies, during 
 " the times therein mentioned." 
 
 EDWARD DUNSCOMB, 
 
 Clerk of the District of New -York.
 
 TABLE OF CASES. 
 
 The Numerate denote the Page in tl\e Introductisn. 
 
 Page JPage 
 
 Bergen v. Bennett ' 1 Jenkins v. Union Turnpike Co. 86 
 
 Church v. Bedient and others . 21 Jenkins v. De Groot .... 122 
 Duguet v. Rhinelander . . . xxv Johnson fie Weir v. Ludlow . . xxix 
 Furman v. Coe and others . . 96 Le Roy and others v. Servis and 
 
 Grant and others v. Bank of others iii 
 
 United States 112 Livingston v. Rogers . . . . xxvii 
 
 Grant v. Bissett and others . . ibid. Swartwout v. Woolsey and others 73 
 
 Hallett v. Peyton 28 Vos & Graves v. Unit. Ins. Co. vii 
 
 Hallett Sc Bowne v. Jenks , 43 Waters and others v. Stewart 47

 
 PREFACE. 
 
 THE Decisions now offered to the Public, are the 
 Judgments of a Court of dernier resort, and of the 
 highest importance. To be acquainted with deter- 
 minations of inferior Tribunals, would be of scarce- 
 ly any utility, if those of this were unknown. It 
 is from hence we are to receive the Supreme Law 
 of the land : for such its opinions may well be term- 
 ed ; because, however our Legislature may enact 
 and ordain, whatever is thus enacted and ordained, 
 is here, in almost all cases, to be expounded and 
 enforced. It is here that the worth of the adjudica- 
 tions of every other Court, is to be ascertained. It 
 is in this mint they receive their stamp* and ster- 
 ling value. The endeavours, therefore, of the Au- 
 thor have been directed to collect as many of the 
 antecedent Decisions of the Court of Errors (for, 
 thank God ! it is not yet known as one for the trial 
 of Impeachments) as he possibly could. Those 
 now obtained will form an introductory part to the 
 present number. So, what may be in future ac- 
 quired, will precede the Reports of the year, and 
 though this extension of the original plan will na- 
 turally demand an increase of price, the already ex- 
 perienced liberality of the Ear is, on this point, a 
 sufficient guaranty that the Work will not on this 
 account be the less acceptable. The Determina-
 
 u PREFACE. 
 
 tions now prefixed to the Cases reported by the Au- 
 thor, have been furnished by the kindness of THO- 
 MAS R. GOLD, Esq. and were adjudged while he 
 was in the Senate. The opinions he read, are given 
 as those of the Court, and, though expressed in his 
 language, contain the principles on which the Cases 
 were decided. 
 
 GEO. CAINES, 
 
 New-York, December, 1804,
 
 CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 COURT FOR THE TRIAL OF IMPEACHMENTS 
 
 AND 
 
 CORRECTION OF ERRORS 
 
 IN THX 
 
 STATE OF NEW- YORK : 
 
 FEBRUARY, 1801, 
 
 Herman Le Roy, William Bayard, 
 and Gercitt Boon, 
 
 against 
 Peter Servis, Peter Little, Samuel 1 
 
 Runyions, James Warren, and> Respondents. 
 others, ) 
 
 THE appellants filed their bill in chancery, stating, that in ALBANY, 
 1768, Peter Servis, and twenty-four others, presented to Sir s^-v>^/ 
 Henry Moore, formerly governor of the province of New- Where there are 
 
 several complai- 
 
 York, a petition, praying him, for their use, to purchase from nants to a bill 
 the Oneida Indians 25,OOO acres of land, then in the county junction, an affi- 
 of Albany, but now in that of Herkimer, and to grant them j a n V e, Showing 
 Jetters patent for the same. That for money, or some 
 
 terposition, is 
 sufficient; and a 
 
 lemurrer that all have not joined is bad. Whether our courts will entertain a plea that a con- 
 tact is illegal, because in contravention of the royal instructions respecting grants of lands to 
 patentees ? Qy. A demurrer to a bill, because seeking a discovery of thiit which would subject 
 '.o the penalties of the act against buying pretended titles, is bad, unless it appear the answer 
 would show a scienter of the seller's being out of possession, and a subsisting adverse posses- 
 sion. If a plaintiff be properly before the court of chancery for a discovery, he may pray re 
 'rf, nnd a demurrer to the whole bill on that account, is bad-
 
 iii CASES IN ERROR IN THE 
 
 ALBANY, valuable consideration (not particularly known to the com* 
 *_r -IL_' plainants) paid, delivered, or performed, by Sir William 
 H. Le Uoy and Johnson, ibrmerlv of the county of Tn/sn, deceased, and on 
 
 others * 
 
 consideration that he would pay all the office and other* fees, 
 
 P. Scrvis and * i i " i i i 
 
 others. on issuing the letters patent, tue petitioners agreed with him, 
 "- "-"" that, on their obtaining a grant for the said 25,OOO acres, 
 they would hold the same in trust for him, and duly convey 
 * i v - #the whole to him in fee. That in the year 1769, letters pa- 
 
 tent were issued for the above lands, in favour of the peti- 
 tioners, the office and other fees whereof Sir William John- 
 son paid j upon which, the patentees did, for the considera- 
 tions aforesaid, and in pursuance of their said agreement, by 
 sufficient deeds in the lav/, grant, release, and convey the said 
 25,000 acres of land, to the said Sir William Johnson, in fee- 
 simple, by virtue of which the said Sir William Johnson 
 took possession thereof, caused the same to be surveyed, 
 and trees to be marked in the boundary lines thereof. The 
 bill then set forth a regular chain of title, from Sir William 
 Johnson, for 23,OOO acres ; and also, that after the death of 
 Sir William, and early in the war between the United States 
 and Great Britain, Sir John Johnson, the son, and one of 
 
 &* 
 
 the executors of Sir William, had the custody of the convey- 
 ances, from the patentees, and to guard against their loss, or 
 for some other reason, buried them in the earth, by means 
 whereof they were either wholly lost, or rendered illegible, 
 and were therefore altogether out of the power of the com- 
 plainants. That Peter Servis and the other defendants^ en- 
 deavouring to avail themselves of the loss or destruction of 
 ihcce conveyances., and claiming title to the said lands, had 
 brought ac'.ions oi cjeclmcut for them, wherefore they pray- 
 ed a discovery, an injunction to stay proceedings in the 
 several ejectment causes, that the complainants might be 
 quieted in their possession, and that such other and further 
 Jief might be afforded, as was agreeable to equity and good 
 . oriscience. To the bill was annexed an affidavit of the ap- 
 :.nt, Gtrritt Boon, swearing, that, according to his know 
 ;e, information, and belief, the material facts charged
 
 STATE OF NEW-YORK. iv 
 
 were true, and that, according to his information and belief, ALBANY, 
 the deed or deeds from the patentees to Sir William John- v,^v^/ 
 son, was, or were lost or destroyed, as in the bill was set H ' ^j^f and 
 
 forth. To this some of the defendants demurred, and as- , ., v -. 
 
 P. Servis and 
 
 signed for reasons, 1st. That the complainants ought to others. 
 have made affidavit, that they had not in their power or "~ 
 custody the deed or deeds, concerning which they seek a 
 discovery, and for the loss whereof they pray relief. 2d. 
 That the agreement between Sir William Johnson and the 
 patentees, as set forth in the bill, was illegal, and not entitled 
 to the aid of a court of equity. 3d. That the bill charged 
 that the defendants claimed by conveyances *executed by * y 
 
 persons out of possession, and that a discovery of that fact 
 would subject the defendants to a penalty. 4th. That the 
 complainants prayed a discovery of the defendants' title, and 
 to be quieted in possession, before the title of the complain- 
 ants vvas established at law. 5th. That the title of the 
 complainants, as set forth in the bill, was merely triable at 
 law, where it might be fully ascertained and established, if it 
 was as stated to be. Lastly. That the bill contained no equi- 
 ty. These, they contended, were good reasons for demur- 
 rer ; 1st. Because, where it is intended to obtain any speci- 
 fic relief, upon the loss of a particular deed, and thereby give 
 to chancery a jurisdiction to which it would not otherwise 
 be entitled, in exclusion of the common law, it becomes 
 necessary that the party complainant should annex a satis- 
 factory affidavit to his bill, to inform the court of the loss he 
 complains of, and the necessity of equitable interference. 2d. 
 That such affidavit ought, in the present case, to have been 
 made in different terms, or by all the complainants. Ger- 
 ritt Boon may have been informed, and may verily believe, 
 and may hope to be able to prove, as he states in his affidavit, 
 that the petitioners named in the bill of complaint did re- 
 spectively convey all their right, title, and interest to Sir 
 William Johnson, and may also have be<n informed, and ve- 
 rily believe, that the deeds were destroyed, as alleged j yet 
 V"rr plaintiffs may not believe v.ny surh matter, ami
 
 CASES IN ERROR IN. THE 
 
 may actually have evidence to the contrary, or possess the 
 deeds about which they were inquiring. 3d. That there 
 others & ' was not anv necessity for changing the jurisdiction from law 
 P Servis and to ec l uit y 5 f r l ^ e complainants, if the aid of chancery was 
 others. wanted for discovery only, might have the benefit of it on a 
 bill confined to that object. 4th. That the title of the com- 
 plainants, if any, was a legal title, and that if Gerritt Boon 
 Were able to prove (as he swears he hopes to do) the con- 
 veyances to Sir William Johnson^ even a discovery would 
 not be wanted. 5th. That if any one of these reasons is 
 good cause of demurrer, the cause must be regularly out of 
 court. 
 
 The Chancellor having allowed all the demurrers respec- 
 tively, and ordered the complainants' bill to be dismissed, 
 with costs, as to the demurrants, the cause now came be- 
 fore the court on an appeal from that decision. After hear- 
 ing argument, the court resolved, 1st. As to the first point, 
 * vi that the *authority of precedent was wanting to give it sanc- 
 
 tion, no sufficient reasons having been assigned, to induce 
 the court to sustain it ; that on the contrary, considerations, 
 resulting from inconvenience in all, and utter impossibility 
 in many cases, afforded just grounds for repelling the excep- 
 tion. 2d. That it is considered, no decree on the merits of 
 the complainants' case is ever made on the evidence con- 
 tained in the affidavit annexed to the bill ; but that as such 
 affidavit is merely to present probable or colourable grounds, 
 for chancery interference and examination, there could be 
 no hesitation in saying, that the affidavit of Gerritt Boon 
 was sufficient in terms for that purpose j and that the excep- 
 tion taken to it must be disallowed. 3d. On the second 
 cause of demurrer, objecting illegality to the alleged agree- 
 ment between Sir William Johnson and the original paten- 
 tees, in contravening the salutary principles upon which the 
 instructions of the royal government, regulating colonial 
 grants, were grounded, it is sufficient to say, it has been 
 justly admitted, that this is highly delicate ground ; and that 
 the principles of this objection, if allowed, must attach to it 
 very controlling consequences, upon questions of real pro-
 
 STATE OF NEW-YORK. vi 
 
 perty in the state ; but, on consideration, this does not ap- ALBANY, 
 pear to be included in that class of cases, which have been * , y~*_^ 
 affected by the principle resorted to, the general consequen- H - L fty an(l 
 ces of which, in its operation, if sanctioned by this cause, to v. 
 
 P. Servis and 
 
 the prejudice of bonafde purchasers, probably without no- others. 
 tlce, is an argument why it ought not to be extended. 4th. "" 
 The third cause of demurrer urges, that the discovery pray- 
 ed, would endanger the defendants in law, and subject them 
 to a penalty. On this point, as a scienter, or knowledge of 
 the seller's being out of possession, and a subsisting adverse 
 possession, at the time of the sale, are necessary to consti- 
 tute an offence against the statute alluded to, the answer to 
 this part of the bill, disclosing the fact prayed, might be so 
 drawn, as not to contain any admission which would endan- 
 ger the defendant in law. 5th. The remaining objection is, 
 that the complainants blended in their bill relief with a prayer 
 for discovery, when, from aught appearing in the case, a 
 court of law, upon the discovery being obtained, is compe- 
 tent to afford adequate redress. As the Chancellor's retain- 
 ing jurisdiction on the point of relief in this cause, would 
 involve a consideration of the trial by jury, the question pre- 
 sents an aspect peculiarly *important. On this point, * vii 
 though there may be sufficient grounds disclosed to change 
 the jurisdiction, yet, as the complainants were properly be- 
 fore the court upon the point of discovery, the defendants 
 were bound to answer this part of the bill ; and the demur- 
 rer, therefore, to the whole, was not well taken, and ought 
 to have been overruled. The cases on this question arc con- 
 tradictory. The law is not bound down by a series of uni- 
 form decisions, in a manner not to be shaken, and so as to 
 preclude the consideration of" the reason of the rule. Upon 
 this last ground, the reason of the rule, it will be seen, that 
 a decision in conformity to the above opinion will, at the 
 same time that it discountenances the doctrine of turning 
 round the suitor upon nice and critical exceptions, operate 
 no prejudice to the defendants upon the merits of the ques- 
 tion ; because a judgment, overruling a demurrer in chan-
 
 vii CASES IN ERROR IN THE 
 
 ALBANY, cery j g ; n i t3 effects, in nature of a respondeas ouster in a 
 
 isoi. J . r 
 
 \*^^~**,' court of law. The opinion of the court, therefore, is, that 
 
 II. LC Roy and t he causes assigned do not sustain the decree in this cause, 
 
 others 
 
 and judgment of reversal must be entered. 
 
 P. Servis ami 
 others. 
 
 Andrew Vos and John Boonen Graves against 
 The United Insurance Company. 
 
 A mere sailing IN error from the supreme court. The special verdict 
 derstooii^to "be on which judgment was rendered, contained the following 
 H brS ofneu- facts. On the 21st June, 1 798, the defendants, for Vos and 
 cc^poNcy of ^ raves -> insured eight thousand dollars on the American brig 
 urance. Columbia, from New-York to Amsterdam, at a premium of 
 17 1-2 per cent. At this time neither party knew the Texel 
 was blockaded. It was warranted in the policy that no loss 
 should arise to the defendants, by reason of capture, seizure, 
 or detention, in the port of Amsterdam, the Texel, or the 
 VUe, and that the cargo was American property. The plain- 
 tiffs for an additional premium of two and a half per cent. 
 obtained liberty from the defendants, to touch and trade at 
 Hamburgh, which was granted, in consequence of the fol- 
 lowing letters written to the defendants. 
 
 " Neiv-Tork, 25th June, 1798. 
 "Sin, 
 
 " The cargo of the brig Columbia, Benjamin Weeks, mas- 
 viii ter, being insured at the New-Tork Insurance Company, *at 
 
 and from hence to Amsterdam, on the 14th instant, and the 
 accounts daily receiving, rendering motives of precaution 
 extremely necessary ; we therefore propose to order the 
 vessel to touch at Hamburgh for orders, which may be done 
 without delay, as she is to go north about, provided you will 
 permit it in the policy without any additional premium : 
 And should our friends advise that it would be dangerous
 
 STATE OF NEW- YORK. viii 
 
 to proceed to Amsterdam, in that case the risk should end 
 at Hamburgh. 
 
 " We are, &c. VOS and GRAVE S. Vos an <J Gravcs 
 
 < l To the President of the Uni- 1 Unil Ins - Co. 
 
 ted Insurance Company." J ' 
 
 THE SAME TO THE SAME. 
 
 New-Tork, 27t/i June, 1798.' 
 " SIR, 
 
 " On being informed that the Texel was blockaded by the 
 English, and a ship from Philadelphia, bound to Amsterdam, 
 had actually been sent to Yarmouth, we applied to you yes- 
 terday to obtain leave for the brig Columbia to touch at 
 Hamburgh for orders. From this circumstance we conceive 
 it highly interesting to the office, to grant the permission 
 without the charge of an additional premium. At any rate 
 we would rather have the vessel proceed on as the policy 
 now stands, than to augment the premium ; for the circum- 
 stance of the blockade was unknorvn to us, when the insu- 
 rance was effected, and it is probable it may be withdrawn 
 by the time the vessel reaches Amsterdam." 
 
 The plaintiffs had property on board to the amount of 
 the sum insured. They also owned the brig, which, with 
 the cargo, was American property. The brig sailed on the 
 voyage insured, and arrived at Cruxhaven, on her way to 
 Hamburgh, in August, 1 798. In three or four days after, 
 she sailed from Cruxhaven for Amsterdam. On the day she 
 left Cruxhaven, she was captured by a British frigate, and 
 carried into Yarmouth. The brig and cargo were libelled 
 in the High Court of Admiralty of England, and were con- 
 demned by Sir William Scott, who pronounced the following 
 sentence. " There is pretty clear proof of neutral property 
 in this case, both of the ship and cargo ; but the vessel was 
 taken attempting to break a blockade. It is necessary for 
 me to ^observe, that there is no rule of the law of nations # j^ 
 
 more established than this, that the breach of the blockade 
 
 B
 
 CASES IN ERROlt IN THE 
 ALBANY, subjects the property so employed, to confiscation. Among 
 
 I oOl . 
 
 \^**^s~^s all the contradictory positions that have been advanced on 
 v os ami Graves t h e j aw o f nations, this principle has never been disputed; 
 Unit. ins. Co. it is to be found in all books of law and in all treaties ; every 
 "" man knows it ; the subject^ of all states know it, as it is 
 universally acknowledged by all governments, who possess 
 any degree of civil knowledge. This vessel came from 
 America, and, as it appears^ with innocent intentions on the 
 part of the American owners ; for it was not known at that 
 time in America, that Amsterdam was in a state of invest- 
 ment ; and therefore there is no proof immediately affecting 
 the owners. But a person may be penally affected by the 
 misconduct of his agents, as well as by his own acts : and 
 if he delegates general powers to others, and they misuse 
 their trust, his remedy must be against them. Tlie master 
 was by his instructions to go north about to Cruxhaven. 
 This precaution is perhaps liable to some unfavourable in- 
 terpretation : the counsel for the claimant have endeavoured 
 to interpret it to their advantage ; but, at the best, it can be 
 but a matter of indifference. When he arrived at Cruxha- 
 ven, he was to go immediately to Hamburgh, and to put 
 himself under the direction of Messrs. Bone & Company. 
 They therefore were to have the entire dominion over this 
 ship and cargo. It appears, however, they corresponded 
 with persons at Amsterdam, to whom farther confidential 
 instructions had been given by the owners ; and these or- 
 ders are found in a letter from Messrs. Vos &? Graves, of 
 New-Tork, to Boue & Company, informing them, that the 
 Columbia was intended for Amsterdfim-+-cons\gne<\ to the 
 house of Crommelin, to whom Boue & Company are direct- 
 ed to send the vessel on, " if the winds' should continue un- 
 steady, and keep the English cruisers off the Dutch coast :" 
 if not, they were to unload the cargo, and forward it by the 
 interior navigation to Amsterdam. Boue & Company ac- 
 cordingly direct the master ""to proceed to Amsterdam, if 
 the winds should be such as to keep the English at a dis- 
 tance." There is also a letter from the master to Bout; from
 
 STATE OF NEW-YORK. ix 
 
 Cruxhaven, in which he says, " Amsterdam is blockaded." 
 We have this *fact then, that when the master sailed from 
 Crux/raven^ the blockade was perfectly well known bodi to an v 
 him and the consignees: but their design was, to seize the 
 opportunity of entering whilst the winds kept the blockading * ^ 
 
 force at a distance. Now, under these circumstances, I 
 have no hesitation in saying, that the blockade was broken. 
 The blockade was to be considered as legally existing, al- 
 though die winds did occasionally blow off the blockading 
 squadron. It was an accidental change which must take place 
 in every blockade : but the blockade is not therefore sus- 
 pended. The contrary is laid down in all books of autho- 
 rity ; and the law considers an attempt to take advantage 
 of such an accidental removal, as an attempt to break the 
 blockade, and as a mere fraud." But ic has been said, that 
 by the American treaty, there must be a previous rvarning- 
 Certainly where vessels sail without a knowledge of the 
 blockade, a notice is necessary; but if you can affect them 
 with the knowledge of that fact, a warning then becomes an 
 idle ceremony, of no use, and therefore not to be required. 
 The master, the consignees, and all persons intrusted with 
 the management of the vessel, appear to have been suffr> 
 ciently informed of this blockade ; and, therefore, they are 
 not in the situation which the treaty supposes. It is said 
 also, that the vessel had not arrived; that the offence was 
 not actually committed, but rested in intention only. On 
 this point I am clearly of opinion, that the sailing with an 
 intention of evading the blockade of the Texel, was begin- 
 ning to execute that intention ; and i an overt act constitu- 
 ting the offence. From that moment the blockade is fraudu- 
 lently invaded. I am, therefore, on full conviction, of 
 opinion, that a breach of blockade has been committed in 
 this case ; that the act of the master will affect the owner 
 to the extent of the whole of his property concerned in the 
 transaction. The ship and cargo belong, in this case, to 
 tjie same individuals, and therefore they must be both
 
 x CASES IN ERROR IN THE 
 
 ALBANY, involved in the sentence of condemnation." The mate, on 
 
 1 801. 
 
 *^*~Y-***^J his examination as a witness in the cause, deposed " That 
 
 a " ( |, es it was generally understood among the Americans at Crux- 
 
 Co> haven, at the time the Columbia sailed from thence, that 
 
 Amsterdam was considered as a blockaded port, and it was 
 
 & xi so understood by himself and the captain *of the Columbia ; 
 
 that the British ship, upon falling in with the brig, imme- 
 diately seized her as being bound to a blockaded port, and 
 also, on the pretext of her having Dutch property on board ; 
 that it was generally understood by the Americans at Crux- 
 have?! at the time the Columbia left it, and it was understood 
 by the captain and him, that it was the practice of British 
 cruisers to stop vessels bound to Amsterdam, and send them 
 back without seizing them, and only to seize in case of a 
 second attempt to enter Amsterdam ,- and that under this 
 idea, the captain sailed for Amsterdam" When it was 
 generally believed in the city of Nerv- York, that Amsterdam 
 was blockaded, to wit, on the 18th of September, 1798, the 
 defendants insured the American ship Patriot, from Neiv- 
 Tork to Amsterdam, with liberty to touch at Altona within 
 one miie of Hamburgh, for 17 1-2 per cent, to return 2 1-2 
 per cent, if the voyage ended at Altona. 
 
 Upon the facts thus found, the majority of the court gave 
 judgment for the defendants, for the reasons assigned in the 
 two following opinions, delivered by Mr. Justice Kent and 
 Mr. Justice Radc'ijf. 
 
 KENT, J. On these facts two questions arise: 1. Will 
 a voluntary attempt by the captain to break a blockade be 
 sufficient to destroy the right of recovery on the policy ? 
 2. If it will, is there the requisite evidence in this case of 
 that attempt ? In answer to the first question, I am of 
 opinion that such an attempt takes away from the assured 
 his right to recover ; for he can never be allowed to indem- 
 nify himself upon an innocent party, from the consequences 
 of his own want of skill, or from his negligence or folly.
 
 STATE OF NEW-YORK. ** 
 
 The act of the master must be referred to his principal, ALBANY, 
 
 i 1801. 
 
 who appoints him; and whenever a loss happens through v^v^***/ 
 the master's fault, unless that fault amount to barratry, the Vos and Graves 
 owner, and not the insurer, must bear it. It is a fault in the Unit. Ins. Co. 
 master, to occasion a loss of property, from his carelessness, 
 or want of competent skill ; and much more is it the case, if 
 he -wilfully occasion that loss, as by resisting search, break- 
 ing a blockade, &c. He is charged with a discreet and 
 faithful execution of his trust, and it is against his duty to 
 expose the property unnecessarily to risk, either from natu- 
 ral perils, or from perils arising from the violation of his 
 neutrality. It is a point not to be disputed, that an attempt 
 ^knowingly to break a blockade, is a violation of neutral 
 duty, and occasions a forfeiture of the property ; and it can- 
 not be supposed, unless it be so expressed, that the insurer 
 takes upon himself such risk. The risk of fault in the mas- 
 ter (barratry excepted) is not a risk enumerated in the 
 policy ; and it would be very unreasonable, that the insurer 
 should be holden beyond his express undertaking, for the 
 fault or folly of the master, whom the insured selects and 
 controls.t In answer to the second question, I have no t-^. rtr 136 to 
 doubt in concluding, there is sufficient evidence in the case 2 Vatin, ~7. 79. 
 of a wilful attempt by the captain to break the blockade of 
 Amsterdam. This evidence results from the condemnation 
 in the British court of admiralty ; and for the conclusive 
 effect of that sentence, I refer to my opinion in the causes 
 of Vandenheifoel v. The United Insurance Company, and 
 Church. There is also sufficient evidence, without resort- 
 ing to the sentence. When the captain left Cruxhaven, he 
 sailed with the understanding that Amsterdam was a block- 
 aded port ; and he sailed also under the idea, that if he 
 should meet with a British cruiser in his attempt to enter 
 Amsterdam, he would, for the first attempt, be sent back, 
 and not seized. This appears by the testimony of the mate, 
 and it is sufficient to establish the fact of the blockade, as 
 against the plaintiffs, (it being the admission of their master,) 
 until they repel it by direct proof to the contrary. But
 
 xji CASES IN ERROR IN THE 
 
 ALBANY, there is no such contrary testimony in the case. It would 
 
 1801. 
 
 \*~*~^y~*^' seem, indeed, to be implied, from some of the observations 
 Yos and Graves o f Sir William Scott, which are thrown into the case, that 
 Unit. Ins. Co. winds had occasionally blown off, or kept at a distance, the 
 ~" blockading squadron, but at what precise time, or to what 
 precise distance, does not appear. We do not know, except 
 by necessary deduction from the testimony of the mate, what 
 was the actual state of the blockade, or how far the British 
 cruisers were at the time in a situation to preserve it. Nor 
 do we know the situation the vessel was in, or her proximity 
 to Amsterdam, when she was captured. The mate informs 
 us only, that the master understood when he sailed from 
 Cruxhaven, tliat Amsterdam was blockaded ; that he sailed 
 with an iutent to attempt to enter it, and with the under- 
 standing that for his first attempt he would only be snt 
 back, and tliat lie was captured the day he sailed. How 
 near he had approached the coast of the Vlie and Tcxel, we 
 do not know. He might have reached the coast, for it is 
 * xiii #within the reach of a day's sail. Every reasonable conclu- 
 
 sion that the admissions of their mate will warrant, is, howr 
 ever, to be drawn against the plaintiffs, so Jong as they fur- 
 nish no other proof -to explain or repel those admissions. 
 My opinion accordingly is, that the existence of the block- 
 ade, the wilful attempt of the master to break it, his capture 
 while executing that attempt, and at no great distance from, 
 if not in, the neighbourhood of the blockading port, are all 
 necessarily to be inferred from the case, and that judgment 
 ought, therefore, to be given for the defendants. 
 
 RADCLIFF, J. On the 21st June, 1798, the date of the 
 policy, neither party knew of the investment of Amsterdam, 
 and this excludes the idea, that, by any special agreement 
 or understanding, the insurance could have been meant to 
 extend to any peril, for breach of, the particular blockade in 
 question, if any existed. 1st. It is a settled rule, that the 
 insured, in order to comply with his warranty, must not
 
 STATE OF NEW-YORK. xiii 
 
 only maintain the property to be neutral, but so conduct ALBANY, 
 himself towards the belligerent parties, as not to forfeit his 
 
 neutrality ; he must pursue the conduct and preserve the Vos and Grave* 
 
 y^ 
 
 character of a neutral. This being the import of the war- Unit. is. Co. 
 ranty, and the condemnation being founded on a breach of " 
 neutrality, it operates to preclude the plaintiffs, on the prin- 
 ciples adopted with regard to the effect of foreign sentences, 
 in the case of Vandenheuvel v. The United Insurance Com- 
 pany. 2d. In the present case, the plaintiffs, before the 
 vessel sailed from New-Tork, to wit, on the 27th June, in 
 consideration of law, had notice of the blockade. This ap- 
 pears by their letter to the defendants of that date. Al- 
 though the information was not then certain, it was suffi- 
 cient to excite serious apprehensions, and to put them on their 
 which, in judgment of law, is deemed competent 
 
 notice. f The captain, however, before he sailed from f t *1tk. 490. 2 
 
 Cruxhaven, had actual notice of the blockade j and there can 
 
 be no doubt but the plaintiffs are liable for his acts. He 
 
 sailed with the professed intent to evade it, if an opportu- 
 
 nity should offer, but under an idea that, by the treaty of 
 
 1794, he was entitled to notice to desist, and to be sent back 
 
 on the first attempt. The provision in the treaty on the sub- 
 
 ject, it is obvious, cannot apply to a case where the party al- 
 
 ready possesses the requisite information. This is the rule 
 
 in all cases where a party is to be affected by notice. But 
 
 it is objected, that *the captain was not in the act of break- *xiv 
 
 ing the blockade ; that it existed merely in intention, and he 
 
 was therefore not liable to seizure. If this idea be correct, 
 
 then no such capture can be lawful, until the line of blockade 
 
 be actually invaded. The resolution may be formed and act- 
 
 ed upon, and no progress in the execution of it can be stop. 
 
 ped or prevented till the breach be made. A construction so 
 
 forced and limited, appears to me inconsistent with an ef- 
 
 fectual exercise of the right. It may be difficult to define 
 
 its precise extent, but it is more reasonable to adopt the rule, 
 
 that the besiegers are entitled to take preventive measures ; 
 
 and that, where the resolution to break a blockade is form-
 
 xiv CASES IN ERROR IN THE 
 
 ALBANY, ed, and begun to be executed, within a reasonable distance to 
 
 1801. 
 
 render it practicable, the offence is incurred, and the party 
 
 Vos and Graves \\^\ e to seizure. Such was the case in the present instance. 
 
 Unit. Ins. Co. F rom the testimony of the mate, as well as from the sen- 
 tence, it appears, that an actual blockade was understood at 
 the time to exist ; as a fact, it seems not to have been ques- 
 tioned. But the particular situation of the blockading force 
 does not appear, nor do I think it material. Although the 
 party may have intended to avail himself of an accidental 
 interruption occasioned by winds and tempests, this intent 
 will not excuse him, for such interruption cannot be consi- 
 dered as destroying the existence of the blockade. At 
 least, if he attempts to enter under such circumstances, it 
 is at his peril, and he subjects himself to the hazard of sei- 
 zure and confiscation. I think the reasoning of Sir William 
 Scott, whose opinion is contained in the sentence annexed 
 to the case, is satisfactory, and that the sentence on the 
 merits was right, and of course, that the plaintiffs have for- 
 feited their neutrality, and ought not to recover on the po- 
 licy, admitting the sentence open to investigation. Neither 
 is he entitled to recover the premium, because the risk had 
 actually commenced, and the warranty was forfeited by a 
 subsequent breach of neutrality. 
 
 Against this judgment, on behalf of the plaintiffs in error, 
 Brockholst Livingston argued that it was erroneous, because 
 the defendants assumed every risk attached to an attempt to 
 enter a blockaded port ; because the condemnation of the 
 High Court of Admiralty of England is manifestly unjust 
 The defendants understood the Columbia was going to a 
 port supposed to be in a state of blockade, and therefore in- 
 sured the plaintiffs against a seizure and condemnation on 
 
 * xv that, as *well as any other account. This appears from the 
 
 policy, from the additional premium, and from the corres- 
 pondence. The policy is to Amsterdam. This was effect- 
 ed without suspicion of a blockade. The risk, therefore, as 
 to the future state of that city, fell upon the assurers. If 
 news of the blockade had been received the next day, thr
 
 STATE OF NEW-YORK. xv 
 
 plaintiffs were not bound to break up the voyage. The in- 
 
 surance being at and from New- Tork, the underwriters could 
 
 not be compelled to refund any part of the large premium Vos and Graves 
 
 which was paid. The plaintiffs, thus circumstanced, were Unit Ins. Co. 
 
 not obliged to unload their vessel, or be at the expense of a 
 
 new insurance to another place; without saying a word, 
 
 they might have gone on, and if taken, even in an attempt to 
 
 enter, the defendants must have paid. Thus a merchant 
 
 who, in peace, warrants his property neutral, does not in- 
 
 sure against future events, or engage the goods shall so con- 
 
 tinue the whole voyage. If war break out the next day, he 
 
 is still covered, t The insurers, in the words of Lord t See 
 
 v. Rogers, 3 
 
 Mansfield^ " take upon themselves all future events and Has. <y Pull. 
 
 . r . contra. 
 
 risks, irom men ol war, enemies, detention ot princes, 
 
 &c. &c. An insurance to a blockaded port is not within 
 
 the description of unlawful contracts. The laws of the 
 
 United States do not prohibit such commerce. If publicly 
 
 known that an American vessel was going to a port in that 
 
 state, no measures would be used to stop her, nor would a 
 
 seizure or forfeiture in this country follow. The law of na- 
 
 tions permits the same thing, but the vessel may be seized 
 
 as prize, by the surrounding squadron, if taken in an at- 
 
 tempt to enter. By this is intended, that the law of nations 
 
 attaches no illegality to the bare inception of such a voyage, 
 
 unaccompanied by a subsequent attempt to enter. If it be 
 
 true, that after the report of a blockade reached Neiv-Tork, 
 
 the plaintiffs might have proceeded without saying an 1 ," 
 
 thing to the company, their case is greatly fortified. The 
 
 increased premium which was exacted of them, shows a 
 
 blockaded port was contemplated. The assured, with good 
 
 laith, and to avoid a greater risk to the other party than 
 
 may at first have been designed, immediately announce to 
 
 them the intelligence of a probable blockade and ask per- 
 
 mission to direct the Columbia to touch at Hamburgh. This 
 
 became necessary to prevent a deviation. Here was an op- 
 
 portunity afforded to the underwriters of offering to cancel 
 
 the policy, *or of consenting to the vessel's going to Ham." #. xy j
 
 xvli CASES IN ERROR IN THE 
 
 ALBANY, more admires the bold, eloquent, and yet perspicuous lan^ 
 
 1801 . 
 
 _n -n_' guage in which his opinions are uniformly given. In the 
 Vos and G,-aves cases decided by Sir William Scott, the mind finds relief 
 Unit. ins. Co. from the fatigue and disgust which it contracts by a review 
 "" of the iniquitous conduct of other admiralties, which pre- 
 sent one uninterrupted scene of rapine and oppression. But 
 without pretending to derogate from his character or abili- 
 ties, I cannot think the condemnation of the Columbia au- 
 * xviii thorized by the law of nations, or the treaty ^between the 
 
 two countries. It will not be denied that an attempt to en- 
 ter a blockaded port is prohibited to neutrals. Such inter- 
 diction is inevitable. Blockades would become idle cere- 
 monies, were all the world permitted, as at other times, to 
 enter die harbour and succour the besieged. The invest- 
 ing foe therefore is permitted to interrupt such entrance, and 
 to confiscate property taken in the attempt. But this 
 being a right, in restriction of those of neutrals, who are to 
 suffer as little as possible by the hostilities of others, ought 
 not to be enforced, unless where a blockade actually and com- 
 pletely exists. If the squadron be accidentally absent or 
 blown off, neutrals are restored to their rights, and exempt 
 from the penalty, which in the other case they incur. Who 
 can say the fleet will ever return, or the blockade be renew- 
 ed ? If a neutral can take advantage of this temporary sus- 
 pension of the blockade,* whether produced by necessity or 
 choice, he should not suffer for the attempt. If the block- 
 ade be raised, whether by the appearance of a more pow- 
 erful foe, or by the act of God, it no longer continues, and 
 the port becomes open to all the world. If superior force 
 confers a right to impose on neutrals this restraint, they in 
 turn, without any imputation of fraud, are restored to the 
 privilege of a free trade, the moment the ships are removed, 
 and have a right, if they can, to take advantage of such re- 
 movaL The Columbia, it will be remembered, was captured 
 by a vessel not belonging to the blockading division. Where 
 the squadron was at this time, whether blown off or not, 
 docs not appear ; at any rate, it will be allowed, that Sir
 
 STATE OF NEW-YORK. xviii 
 
 William Scoffs interpretation of this right, as it respects neu- 
 trals, is very rigorous. But, without combating this con- 
 struction, we say, the Columbia ought not to have been for- 
 feited. To justify a confiscation for a breach of blockade, J 
 there should be notice of its existence, an attempt to 
 enter, and, under the British treaty, a turning away, and 
 a second attempt to go in. Sir William Scott admits the ne- 
 cessity of a notice, and a warning not to enter. Rob. Rep* 
 124. What then shall amount to notice i Will a mere re- 
 port justify a master, who has signed bills of lading for one 
 port, in going to another ? Suppose his information incor- 
 rect, and a loss happen, will it not be a deviation? Would 
 not the owners and shippers in that case lose their insu- 
 rance, and he be responsible to both ? The *obstinacy of a 
 Danish master, in the case of the Henric and Maria, men- 
 tioned in the first volume of Robinsorfs Reports, evinces 
 what was his sense of duty in a similar emergence. Being 
 warned by an English ship not to go to a Dutch port, he an- 
 swered, that " he must proceed according to his bills of la- 
 ding, that he could not answer to his owners not to go to any 
 place but Holland" In our case, no such warning is pre- 
 tended. It is admitted by the judge, that the Columbia left 
 America " with innocent intentions on the part of the own- 
 ers ;" for, says he, " it was not known at that time in Ame- 
 rica, that Amsterdam was in a state of investment, and there- 
 fore there is no proof immediately affecting the owners." 
 After this concession, we contend that nothing short of be- 
 ing turned away, could justify the captain in not proceeding 
 to Amsterdam. A contrary rule would lead to great embar- 
 rassment, and put it in the master's power to break up a voy- 
 age on light rumours, or very imperfect accounts of a block- 
 ade. If aught, short of actual turning away, be sufficient, it 
 should be settled with precision, what species of notice or 
 information shall justify a captain in going to some other 
 port? Whether such notice must proceed from one of the 
 blockading ships, or may come from any other quarter ? 
 Whether such an interruption will justify an abandonment
 
 kix CASKS IN ERROR IN THE 
 
 ALBANY, to t he underwriters ? And who is to sustain the loss, the 
 
 1801. 
 
 * _g- -t_' merchant or assurer, in case none or a bad market offers at 
 Vos ami Graves t ne p Or t J n to which the vessel is compelled to go ? To avoid 
 Unit ins. Co. these difficulties, it is settled that nothing short of an attempt 
 to enter justifies a seizure. *' If I lay siege to a place, or only 
 form the blockade," says Vattcl, " I have a right to hinder 
 any one from entering, and to treat as an enemy whoever at- 
 tempts to enter the place, or carry any thing to the besieged 
 without my leave." Vattel, b. 3. c. viii. s. 117. A mere 
 intention, or sailing with such view, is not sufficient an in- 
 tention to commit an ofl'ence is not punishable. Sir William 
 Scott incautiously considers " the sailing with an intention 
 of evading a blockade, an overt act, constituting the of- 
 fence." It would be quite as correct to term a preparation 
 of poison, with an intent to kill, an overt act of murder. 
 As in the latter case, remorse or fear may arrest the career 
 of the- assassin ; so in the other, if the blockade is found to 
 * xx exist when the vessel approaches, the master may *change 
 
 his course without infringing on the rights of the enemy. 
 It is important that Sir William Scott admits the offence 
 here, consisted only in intention. An attempt to enter, is 
 not pretended. This also appears from the verdict. The 
 seizure was made on the very day of the Columbia's depar- 
 ture from Criixhaven. The distance thence to Amsterdam 
 does not appear. If it be once granted that a vessel, the 
 moment of weighing anchor with an intention of going to a 
 blockaded port, may be seized, as was done here, where are 
 we to stop ? If it be rumoured in Nciv-Tork that Calcutta, 
 Batavia, or the Itlc of France, be in a state of blockade, shall 
 no vessel in the United States, laden for either of those ports, 
 set sail until its termination be formally announced ? What 
 injury is done to the powers at war, if a hundred of our ves- 
 sels sail with an intention of going thither, and yet turn 
 away, if the coast be not free ? The fleet are stationed 
 there to prevent vessels from entering. If none attempt to 
 pass, the object of the blockade is accomplished. The Co- 
 lumbia s intention to go up the Texel would not injure the
 
 STATE OF NEW-YORK. xx 
 
 British. If they were at its mouth they would obstruct her ALBANY, 
 course. If not there, they had no cause to complain. The S^T-V^N^/ 
 raptain certainly had no design to persist, if a blockade ex- Voa and Graves 
 isted. Take his intentions collectively, instead of forming Unit. ins. Co. 
 
 the overt act which has been mentioned, they bespeak a per- 
 
 fectly innocent conduct on his part. If the fleet had disap- 
 peared, from whatever cause, before his arrival, with great 
 deference, I should not think it very criminal in captain 
 Weeks to have gone to Amsterdam. The law of nations did 
 not require him to cruise off the Texd, to ascertain whether 
 the blockade would be resumed. But the master knew of 
 the blockade when he left Cruxhaven. True: And " he 
 and all the Americans there, understood it to be the practice 
 of British cruisers to stop vessels bound thither, and send 
 them back, and only to seize in case of a second attempt to 
 enter, and under this idea it was, he sailed for Amsterdam." 
 Nothing blameworthy can be inferred from this conduct. 
 As it regarded the underwriters, he had a right to go to 
 Amsterdam, although blockaded ; such being the true under- 
 standing of the parties, as is confirmed by the several insu- 
 rances which were effected in New-York, after it was known 
 the investment of that place was formed. From this may 
 be collected the sense of Our ^merchants on a point which. * xx; 
 
 has been decided with so much severity against them. 
 Their understanding is, that sailing with an intent to go to 
 a blockaded place, is no cause of forfeiture. As it re- 
 spected his owners, it was the masters duty to be better in- 
 formed than he was at Cruxhaven of the situation of the 
 Texel. The reports there might be ill-founded. As the 
 voyage did not begin there, he was right in going on. As 
 it concerned the British, no wrong would be done to them. 
 The squadron, if there, could easily send him away ; if 
 Bot, their rights could not be impaired. By the British 
 treaty, captain Weeks was authorized to act as he did. 
 He should have been turned away, and not seized until he 
 made a second attempt. This was his conception of the 
 treaty, and it was accurate. Although the obligation of
 
 xxi CASES IN ERROR IN THE 
 
 ALBANY, such warning be confined to vessels whose masters knew 
 y_ J ^- v ^ t[ _ J ; nothing of the blockade at the time of sailing, yet, as the 
 Vosand Graves nature of this knowledge or notice is undefined, it is the 
 Unit. Ins. Co. safer construction to say, that no report, or any information 
 "" short of a formal notification to foreign ministers, which 
 usually takes place, shall be deemed sufficient. But, re- 
 jecting this interpretation, it is not alleged that the owners 
 knew of the blockade when the Columbia sailed from New- 
 York. The contrary is admitted by Sir William Scott. 
 This then being the inception of the voyage, brings her 
 case within the letter of the treaty, so that nothing short 
 of a warning, and a second attempt to enter, should have 
 exposed her to confiscation. I forbear to make any re- 
 marks on the collusiveness of this sentence, as between 
 the parties to this suit. As to its direct effect on the vessel 
 and goods, it is and will remain so. Were the Columbia 
 and her cargo now lying in the harbour of New- Tor k, the 
 former owners could not touch them. The purchasers un- 
 der the decree would be protected. This is going far 
 enough, and all that is intended by paying respect to foreign 
 judgments. But in relation to the assured, and assurers, 
 who were no parties to the litigation in the court of ad- 
 miralty, and who submitted, if at all, ex necessitate, to its 
 jurisdiction, this court will be compelled, in order to do 
 justice between them, to examine the grounds of their sen- 
 tence. The object of the inquiry will be, not to reverse 
 it, to which this tribunal is incompetent, nor to disturb any 
 rights acquired under it, which would be improper, but to 
 * xxii ascertain how far the causes ^assigned were just, and if so, 
 
 how the condemnation is to affect the present question. If 
 captain Weeks had a right to do what he did, then this 
 sentence is unjust, and instead of a defence, it forms an- 
 other item or link in our proofs of loss. Hut if the sen- 
 tence consist with the law of nations, still we say the un- 
 derwriters are liable, because they insured us against every 
 risk attending a voyage to a blockaded port. When the 
 reasons of a sentence appear, a foreign court will ever re*
 
 STATE OF NEW- YORK. xxit 
 
 view them. This is a rule so intelligible and fraught with ALBANY, 
 
 1801 
 
 so much plain and common sense, as to be liable to no mis- v. _ f - -!^_/ 
 apprehension. It may be obscured, as often happens, but Vos and Graves 
 cannot be illustrated, by an anxiety to amplify and eluci- Unit. ins. Co. 
 date. It is not like the doctrine of a silent foreign sen- 
 tence, being conclusive between parties to a policy in cases 
 of warranty, which now also awaits its doom in this ho- 
 nourable court. Not a hundred volumes, not all the law- 
 yers in the universe, can ever succeed in rendering such a 
 position intelligible to men of common understanding. It 
 requires a sublimation of genius, to comprehend one syl- 
 lable of what is written or said on the subject. If Sir Wil- 
 liam Scottj in delivering this decree, had withheld his rea- 
 sons, every one would have been compelled to conclude, as 
 in the case of Goix and Low, that the Columbia was con- 
 demned as enemy's property. The judge having been more 
 communicative than usual, we are relieved from the trou 
 ble of guessing, and the necessity of doing injustice, for in 
 this case also, there was a warranty that the property was 
 American, which is admitted by the decree, or the assured 
 were inevitably gone. This court, we presume, will have 
 no difficulty in examining the reasons assigned for this con- 
 demnation, and making up a judgment of their own on 
 them. Suppose the Columbia had been condemned, al- 
 though an unarmed merchantman, u as an article contraband 
 of war," as was done with die Calliope by one of the West- 
 India tribe ; would this court hesitate to pronounce such a 
 sentence a wicked departure from the law of nations, or to 
 give the owner the full benefit of his insurance ? In a word, 
 the plaintiffs contend that they had a right to go to Amster- 
 dam, blockaded or not. That if they had no such right, 
 the master was not guilty of a breach of blockade. That 
 he did only what was permitted by the law of nations, and 
 the British treaty, and that therefore in every *point of 
 view they are entitled to a reversal of the judgment of the 
 supreme court.
 
 xxiii CASES IN ERROR IN THE 
 
 ALP.AN T Y, Troup, contra, insisted the judgment ought to be affirm- 
 
 y_, ^i- ed. 1. Because, by the universally received law of nations, 
 Vos and Gmvcs the entry of a blockaded port, or even the attempt to enter 
 Unit. Ins. Co. it, with a knowledge of its being blockaded, is a just 
 ground for confiscating the cargo, as well as the vessel, 
 where they both belong to the same owner. 2. Because, it 
 cannot be presumed to have been the intent of the parties, 
 that the insurance in question should be made to Amster- 
 dam, as a blockaded port ; for if such had been their intent, 
 it must have been accompanied at least with an implied li- 
 cense from the defendants in error, to the plaintiffs in error, 
 to attempt to break the blockade, at the risk of the defend- 
 ants in error, if a state of things should be found to favour 
 the attempt ; and it will be contended, that under such cir- 
 cumstances, the insurance was void in its commencement, 
 as being contrary to law. 3. Because, supposing the in- 
 surance was not intended to be made to Amsterdam, as a 
 blockaded port, the attempt by the master of the Columbia 
 to break the blockade, in pursuance of discretionary orders 
 given to him for the purpose, by the plaintiffs in error, who 
 were the owners of the vessel, is not one of those acts 
 of the master, for which the defendants in error are liable 
 in damages to the plaintiffs in error. 4. Because, it clear- 
 'ly results from the facts stated in the record in this cause, 
 that Amsterdam was a blockaded port ; and that the master, 
 with full notice of its being so, attempted to break the 
 blockade. And it will be argued in behalf of the defend- 
 ants in error, that such attempt of the master has dis- 
 charged them from all responsibility to the plaintiffs in 
 error. 
 
 Per Cur jam. The question in this cause is, whether the 
 sailing of the brig Columbia from Cruxhaven with a destina- 
 tion for Amsterdam, and an understanding that it was block- 
 aded, is a breach of the blockade, and a legal cause of cap- 
 ture and condemnation ? The question may be qualified, 
 perhaps, with the addition of an intention to enter the Texel,
 
 STATE OF NEW-YORK. 
 
 xx 
 
 in the event only of the blockading squadron being blown 
 off the coast, so as to leave the port in fact open for en- 
 trance. There is nothing in the verdict, or the assumption 
 of facts by Sir William Scott, as the grounds of his deter- 
 mination, to warrant the conclusion of an attempt to break 
 the blockade, any ^farther than the same is supported by 
 proof of a sailing from Crux haven for Amsterdam. Upon 
 fundamental principles, on which our municipal code of 
 criminal law is established, intention, with some very pe- 
 culiar exceptions, is not made the subject of judicial ani- 
 madversion. That the moral law, which arraigns intention, 
 should be adopted in the law of nations, with a greater lati- 
 tude than in our municipal system, is a subject of some 
 surprise, especially when the application is for the benefit 
 of belligerents, and to the prejudice of neutrals. In inten- 
 tion, there is nothing certain and permanent ; it is control- 
 led by every reflection ; is changed, dropped, and renew- 
 ed, by the occurrences of every hour ; by the constant 
 vicissitudes to which the agent is subject ; the enterprise, 
 on a nearer view, appals ; the locus penitentice is embraced, 
 If there is an inception of the undertaking, by advances to- 
 wards the theatre of action, (as the sailing from Cruxhaven 
 in this instance,) how wide a space yet intervenes ! to the 
 dominion of how many various causes is the intention sub- 
 ject, before the act could be completed ! the information of 
 every hour may change the destination ; the receipt of 
 counter-instructions from the owner may arrest further pro- 
 gress ; the perils of the sea overwhelm ; the information 
 received at Cruxhaven that induced the sailing, may be con- 
 tradicted ; and, lastly, before the vessel may arrive on the 
 line of investment, the blockade may be, by instructions 
 from the admiralty, withdrawn, or raised. The rule that 
 the sailing with a destination for a blockaded port, is a 
 breach of blockade, as urged upon the court, is undefinable 
 in relation to distance between the port of departure and 
 that of destination, and will produce great uncertainty and 
 vexation. Nothing is to be found in the verdict or facts 
 
 ALBANY, 
 
 Unit lns - ( 
 
 * xxiv
 
 xxiv CASES IN ERROR IN THE 
 
 ALBANY, stated, or assumed in the sentence of the admiralty, from 
 \ _,_-!,_/ which to infer the progress of the brig from Cruxhaven to 
 Vos and Graves t h e Texel ; Sir William Scott meets her at the threshold, at 
 Unit. Ins. Co. the port of departure, and pronounces the sailing with an 
 intention of evading the blockade, to constitute the offence : 
 these are his words. It is fairly presumable, that the 
 ground thus taken by the judge, corresponded with the 
 proof, was as broad as the evidence would justify. The 
 record in the cause presents no fact to warrant a contrary 
 conclusion. No inference is to be made from the plaintiffs" 
 communication by letter of the 27th June, that the defend- 
 * xxv ants ^consented to an attempt to enter a blockaded port, as 
 
 that letter closes with the observation, that the blockade 
 might probably be withdrawn before the arrival of the ves- 
 sel. Therefore quite the contrary is rather to be supposed. 
 It is unnecessary to give an opinion on the case of an actual 
 attempt to enter a port during the interruption of the block- 
 ade, by reason of the blockading squadron being blown off; 
 as, in this case, no such attempt was made, nor is the 
 fleet found to have been so blown off. It is therefore the 
 opinion of the court, that there is no authority of precedent 
 binding on it, to warrant the rule adopted by the admiralty 
 sentence in this cause ; that such rule is opposed to essential 
 principles, uncertain in its application, and highly vexatious 
 to neutrals ; that the principle of the late treaty between 
 England and Russia is more propitious to the interests of 
 commerce, and sufficiently favourable to the rights of bel- 
 ligerents, and merits high respect from all neutral powers. 
 Therefore the judgment below must be reversed.
 
 STATE OF NEW-YORK. xxv 
 
 ALBANY, 
 
 Philip Urbin Duguet against Frederick Rhinelander \^^y^^/ 
 and others. 
 
 IN error from the supreme court. The plaintiff (who If belligerent 
 
 i i -rr i i \ i i , v r emigrate to a 
 
 was also plaintiff below) declared on a policy ot insurance, neutral country 
 in which both vessel and cargo were warranted " American 'atH be there na- 
 property" The plaintiff was a Frenchman by birth, who S-^f n*S 
 emigrated to this country flarrante hello, and was natura- ' ity IS * u PPrt*l 
 
 J & by such naturah- 
 
 lized in 1 796. His ship, and that prat of her lading which zation, m .r need 
 
 he disclose to the 
 
 belonged to him, were condemned by the judge of the underwriter the 
 
 period of hh 
 
 vice-admiralty at Nassau in Nezv-Pr -evidence , because the emigration, 
 plaintiff " was, at the commencement of hostilities, and still 
 is, a citizen or subject of the French Republic" A special 
 verdict having been found, it was referred to the court to 
 determine whether the plaintiff was entitled to recover as 
 for a total loss, or only for a return of premium, or whether 
 the verdict should be entered for the defendants. Judg- 
 ment having been given for a return of premium, the case 
 was brought up, on the same points which were made be- 
 low. 1st. Whether the warranty of neutrality was com- 
 plied with ? 2d. Whether there was not an undue conceal- 
 ment in not disclosing the period of naturalization, that the 
 underwriters might have calculated against *the risk of con- * xxvi 
 
 fiscation, for the reason assigned by the sentence pro- 
 mulged ? 
 
 Per Curiam* The first question arising for the consider- 
 ation of the court, in this cause, is, whether the plaintiff 
 has verified hh -warranty of American property in the goods 
 insured? The determination of this point involves the im- 
 portant question, whether the plaintiff is to be deemed, for 
 the purposes of commerce^ an American citizen. On this 
 question, while the claims of a state upon its citizens, when 
 surrounded and pressed by its enemies, are recognised ; 
 while the course to which duty prompts is plain, and readily 
 perceived ; yet so different are the circumstances of dif-
 
 XXVI 
 
 CASES IN ERROR IN THE 
 
 ALBANY, ferent states, so various their policy, that the right of citi- 
 
 1801. 
 
 \^^y~^~/ zens to emigrate during war, must, so far as respects the 
 
 Duguet p arent sta te, depend on the particular ordinances of each 
 
 F. llhinelamkr individual community 
 
 and others. 
 
 XXV11 
 
 What might not be inconsistent 
 
 with good policy, in a state possessed of an overflowing 
 population, and a scanty subsistence, would be quite dif- 
 ferent from that of a state with a thin population, requiring 
 all her hands for defence, and with sufficient bread for all 
 her citizens. Was the condition of all nations alike in this 
 respect; was the same reason and necessity for prohibiting 
 emigration during war common to all, the rule contended 
 for by the defendants, would have been long since settled, 
 as a fundamental principle of the law of nations, and ex- 
 pressed in language too unequivocal to admit of a doubt, at 
 this period. If a state is assailed by external enemies, and 
 requires for defence the united efforts of all its citizens, of 
 all that it has given birth to, a prohibition against emigra- 
 tion, as we have witnessed in France by the ordinances of 
 1704 and 1744, will attain ail-that is necessary in this re- 
 spect, to the safety and defence of the state. If such pro- 
 hibition is not interposed, the door is open to emigration .. 
 But is an emigration, which is lawful in relation to the pa- 
 rent state, equally so in reference to the enemy of such 
 state ? As a general rule, it is so. At the same time, 
 should the citizens of a belligerent power, in concert with 
 the state, or for the purpose of multiplying the warlike re- 
 sources, or aiding the enterprises of the state, emigrate to, 
 and take a stand in a neutral country, in order to mask 
 mercantile projects under a neutral flag, there can be no 
 hesitation in pronouncing such emigration fraudulent, and 
 that an establishment, and residence, for such unwarranta- 
 ble "^purposes, cannot acquire to the emigrant a neutral 
 domicil ; he still would continue a member of his native 
 family, and as such must participate in, and be affected by 
 the fortunes of the parent state. When such a case is 
 brought before the court, such a determination will be had, 
 as will preserve to the belligerent the full exercise of his
 
 STATE OF NEW-YORK. xxvii 
 
 rights over the property of its enemy. But because the ALBANY, 
 right of emigration may be abused in time of war, it by no ^^^^j 
 means follows, that such right does not exist ; and though P. u. Duguet 
 it may be difficult to detect and punish such abuses, the F. Rhineiamkr 
 argument from thence, against the right, cannot prevail. a " 
 As far as appears from the record in this cause, the emi- 
 gration of the plaintiff proceeded from a common principle 
 of action that prevails more or less in all periods, and all 
 countries ; for the subsistence of himself and his family, he 
 removed to and acquired a domicil in this state. This domi- 
 cil, upon general principles, confers for the purposes of 
 commerce, the right of an American citizen. Native En- 
 glishmen, domiciled in America, by a decision of Westmin- 
 ster-Hall, participate in the rights of American citizens, in 
 relation to trade between America and the East Indies. It 
 will be unnecessary to consider whether the situation of the 
 parent state was not such, at the period of the plaintiff's 
 emigration, as to have no claims upon its citizens ; as rent 
 with factions and violence, and yielding no protection. Up- 
 on the point of undue concealment, raised in the cause, af- 
 ter the foregoing opinion, it will be necessary only to add, 
 that if the faith of contracts should be deemed to have re- 
 quired of the plaintiff a disclosure of his condition, as af- 
 fording a pretext for condemnation, undue concealment is a 
 fraud, odious in law, and as such, not being found by the 
 verdict, is not to be presumed. For the foregoing reason 
 the judgment of the supreme court ought to be corrected, 
 and the judgment here be as for a total lass. 
 
 John R. Livingston against William Rogers. 
 IN an action on a stock contract, the plaintiff, to esta- ivm 
 
 , -. , of the contents 
 
 blish a tender of the stock, called on Guhan Movers, who of a letter of at _ 
 swore that he, under the authority of a letter f attorney, JJJJJja, " t i! e 
 
 person to whom it was given prove it to have been lost.
 
 xxvii CASES IN ERROR IN THE 
 
 ALBANY, made to him by the plaintiff, with whose hand-writing he 
 
 v^J!"X^ was acquainted, and attested by John Wilkes, a notary pub- 
 
 J. it. Livingston lie, *did, after due notice to the defendant, attend to trans- 
 
 W. Rogers. fer the stock, but the defendant never appeared. That al- 
 
 ' ter this, the letter of attorney was, by the witness, deposit- 
 
 *tt * . . 
 
 ed among some papers, and had been since lost. John 
 Wllkes deposed, that he never subscribed any letter of at- 
 torney as a witness, without seeing it first executed. The 
 plaintiff then offered to go into parol evidence of the con- 
 tents of the letter of attorney, but this being overruled by 
 the judge who tried the cause, a bill of exceptions was ten- 
 dered, on which the case came before the court. The de- 
 fendant, in support of the judgment below, relied on the 
 following points : 1st. That the letter of attorney, being a 
 material link in the evidence, ought to have been shown to 
 the court and jury, that they might determine on its cer- 
 tainty ; and where there is a subscribing witness to an in- 
 strument, it must be established by him, if within the juris- 
 diction of the court, such being the agreement of the par. 
 ties. 2d. That the production of deeds can be dispensed 
 with, only where they appear to be in the possession of the 
 opposite party, who has been duly served with a notice for 
 their production ; or where they have been lost or destroy- 
 ed, not by the laches of the party to be benefited by them, 
 but by fire or other accidents. 3d. That in the whole of 
 this case, the conduct of the agent or attorney of the plain- 
 tiff, must be considered as that of the plaintiff himself, who 
 cannot allege his own or his agent's carelessness, as a rea- 
 son for the non-production of papers he was bound to pre- 
 serve. 
 
 Per Curiam. The question upon the bill of exceptions 
 interposed in this cause, is, -whether it be competent for the 
 plaintiff to give parol evidence of the contents of the letter of 
 attorney to M^Evers, under the circumstances detailed in the 
 bill of exceptions, or must the instrument itself be produced? 
 The ancient rule of the common law was highly rigid in
 
 STATE OF NEW-YORK. xxviii 
 
 this respect. It dispensed with the production of instru- ALBANY, 
 ments in a few select cases, and then only for peculiar and v ^- L^i 
 specific causes. But experience under that rule, has, in j. R. Livingston 
 the progressive improvements of English jurisprudence, re- \y. Rogers. 
 suited in a relaxation of the law on the subject. The non- ~ 
 production of instruments is now excused, for reasons more 
 general, and less specific, upon grounds more broad and 
 
 liberal than were formerlv admitted. In 3 D. &? E. (151.)t ^Keadv. Brook- 
 
 man. 
 a declaration on a deed *was sustained, and the profert dis- # xx i x 
 
 pensed with, upon the general allegation of a loss by time 
 and accident. In Beckford v. Jackson, (Esp. Rep. 337.) the 
 plaintiff counted on a deed lost or mislaid; upon which issue 
 was taken, and the same recognised, as warranted in law, 
 by Lord Kenyan, who presided at the trial. Other cases 
 are to be found in the English reports, of similar import, 
 sanctioning the same principle. Upon the authority of 
 those cases, and the reason of the thing, we are of opinion, 
 that parol evidence of the contents of the letter of attorney 
 to Mr. M'-Evers, ought to have been received, and that 
 therefore error has intervened in this respect. Upon the 
 admission of such testimony, should the trial disclose evi- 
 dence, or reasonable grounds ol suspicion of a suppression 
 of the instrument, of malajides in the plaintiff, or should 
 the evidence of its existence and legal efficacy not be clear 
 and satisfactory, it will become the duty of the court to di- 
 rect and charge the jury for the defendant ; a venire fasias 
 de novo must therefore be awarded.
 
 CASES IN ERROR IN THE 
 
 James Johnston and Robert Weir against Daniel 
 Ludlow. 
 
 ERROR from a judgment of the supreme court, in an 
 action on a policy of insurance on goods from New-Tori to 
 The trade of a ^ y Cruz. The instrument contained the following 
 
 domiciled alien, 
 
 carried en from c l ause : u That the property be warranted, by the assured, 
 
 the United . . 
 
 States with the free from any charge, damage, or loss, which may arise m 
 
 Cnemies of his ... r i i L i 
 
 mother country, consequence of a seizure or detention ot the goods hereby 
 dei^ThTwa'rran- insured, for, or on account of any illicit or prohibited trade, 
 ty agamst illicit . trat j e m ar ti c l es contraband of war." From the spe- 
 
 trade. 1 o con J 
 
 stitiue a breach c fa\ verdict it appeared that the plaintiffs, who were the same 
 
 of that warranty, 
 
 the seizure must in both courts, had shipped, besides the property insured, 
 illicit" ^prohibit- six blocks of tin, and seventy-eight boxes of tin plates. That 
 band tVaJr"; ""'a tne latter were condemned as contraband, and the goods in- 
 dem U 7tiott* 'u"" ' suli ed, as belonging to the same owners, British subjects., 
 if r p.-dext <;<. trading with an enemy to their mother country; but that 
 
 such a trade is 
 
 not sufficient, if t h e defendant knew, at the time of subscribing the policy, 
 
 the trade be not r i /^ n 
 
 in fact one or the the plaintiffs were subjects ot the crown ot G reat- Britain, 
 tence in a foreign and that the tin was on board. Judgment having been pro- 
 
 even nounced in favour of the defendant, the case was brought 
 frimn facie evi- b e f ore tn i s cQur t and ^the following questions made : 1st. 
 
 dencc of any 
 
 fact, if there ap- \Vas the trade, in relation to the characters of the plaintiffs, 
 
 pear in it enough . 
 
 to rebut such a illicit? 2d. Was the articles of tin in blocks and plates con- 
 traband of war? 3d. Did the warranty of the assured ex- 
 tend in judgment f law to a loss by seizure or detention, 
 merely because illicit or prohibited trade, or trade in arti- 
 cles contraband of war, was alleged, when in fact the trade 
 was not svich? 
 
 Per Curium. On the first point, the domicil of the 
 plaintiffs being established here without any fraudulent mo- 
 tive, but for fair purposes of commerce, this court ought not 
 to sanction the right of Great-Britain to seize and confis- 
 cate their effects, as has been done in this instance. The
 
 STATE OF NEW- YORK. xxx 
 
 case cited from Bosanquet and Pullers Reports, (page 430.)* ALBANY, 
 
 which arose under the article in our late treaty wish En- ^~^~*^ 
 
 gland, regulating our East-India trade, is not inapposite. In J - Jo ^y 8 e ;" & R ' 
 that case, the English court conceded to a native subject, v - 
 
 o J D. Ludlow. 
 
 domiciled in America, the right of an American citizen, in 
 
 relation to commerce with the Indies. On the second point, r;V'f'* 
 that there may be circumstances and occasions, in which 
 tin, in blocks and plates, may become contraband, is not to 
 be controverted; but while Judge Kelsall professes to detail 
 not only the causes for condemnation, but those on \vhich 
 he did not ground himself, he does not disclose a case 
 which would warrant the conclusion, upon the article in 
 question, of contraband of war. He rests himself upon the 
 bare shipment of the article ; this cannot be subscribed to, 
 nor will the allowed effect of the admiralty sentence, as 
 primd facie evidence, avail the defendant here, as the pre- 
 sumption of facts, to warrant a condemnation, is repelled, 
 by a detail of the precise grounds on which the sentence was 
 pronounced. On the last point raised by the underwriters, 
 that the warranty protects him against any loss by seizure or 
 detention, for, or on account of any illicit trade or contraband. 
 of roar, nothing in this provision is relevant to the case bVL 
 fore the court. The clause literally extends only to partial 
 losses, occasioned by a seizure or temporary detention, un- 
 followed by a condemnation; and if extended farther, it can- 
 not have been the intention of the parties to the policy, to 
 throw upon the assured a loss where there could be no fault 
 in him ; when no illicit trade or contraband existed in fact, 
 merely because a pretext of that kind is set up to cloak the 
 condemnation. The expression, "for and on account '.f," 
 is not equivalent *or convertible into the words under pre- * xxxi 
 
 fence of, but may well be understood to meaner the came 
 of; implying the actual existence of either illicit trade or 
 contraband, as producing such loss or damage. No other 
 construction ought to be admitted, unless the language of 
 the contract is plain and unequivocal, necessarily inducing a
 
 xxxi CASES IN ERROR, &c. 
 
 ALBANY, contrary interpretation. The facts in the cause da not, as 
 the law is now settled in Great Britain, bear out the con- 
 
 j. Johnson & It. elusion of the vice-admiralty court ; nor can any thing in 
 v ur the warranty of the assured protect the underwriter. The 
 judgment of the court below must be reversed.
 
 CASES 
 
 ARGUED AND DETERMINED 
 
 COURT FOR THE TRIAL OF IMPEACHMENTS 
 
 CORRECTION OF ERRORS 
 
 STATE OF NEW-YORK: 
 t 
 
 FEBRUARY TERM, ISn-i 
 
 Teunis Bergen and Michael Bergen, Appellants, and 
 Wilhelmus Bennett, Respondent. 
 
 THIS was an appeal from the decision of his honour the 
 chancellor, permitting the respondent to redeem. The 
 facts as they appeared from the bill, answer and testimony, Bei ' en ^ an - 
 were these: on the 12th of April, 1776. IVilhe/mus Ben- v - 
 
 Rennett. 
 
 nett, deceased, executed to John Vanderbilt, a bond for 600/. -- ; 
 payable in one year, with interest at 5 per cent, and, for ^EYd 'i .."'!! 
 
 further security, he also gave a mortgage on 67 acres of ^,^^ (l j-' e ^ 1 ' 
 land, situated at a place called Go-wanes. Shortly after this, nHMlt > is ai" w '-i- 
 
 coupled with an 
 
 on the 8th of November, 1776, the mortgagor died intestate, intereirt,anl d<vs 
 
 . .. not <lie with tnf 
 
 leaving the respondent w ilhelmits, then a minor of fifteen mort^.^oi- K 
 
 f i-- u i u T-i. i Sll(;h r ower ^ 
 
 years or age, his eldest son and heir at law. 1 he usual recorded in tin- 
 
 book for record - 
 
 ing mortgages, it is a compliance with the act. A sale under such power is R species of fore- 
 closure, and under it a mortgagee may himself make a bona fide purchase. After a lnps (>r 
 sixteen years from the time of sucli sale, known to the mortgagor or his heir, who during that 
 period, has remained passive, a redemption will not be allowed.
 
 CASES IN ERROR IN THE 
 ALBANY, power to sell was contained in the mortgage, which, together 
 
 1804. , . 
 
 with the power, was, on the 10th of April, 1777, registered 
 
 Bergen & ano- in the office of the clerk of the county, in the book for regis- 
 
 thcr 
 
 v. termg mortgages. In the registry the mortgage \vas, as 
 
 cnne usual, abbreviated ; but the power was, though not recorded 
 
 as deeds usually are, set forth in the registry of the mortgage, 
 in haec verba, excepting as to *the latter part, declaring the 
 sale to be a perpetual bar, &c. which was totally omitted. 
 On the 13th of April, 1781, the appellant, Teunis Bergen, 
 purchased the bond and mortgage for a bonajide considera- 
 tion of TOO/. In 1783, the respondent left .his state and 
 went to Nova-Scotia. On the llth of March, 18O4, the 
 appellant Teunis commenced the publication of a notice of 
 the sale of the premises, under the power contained in the 
 mortgage. The notice did not specify the boundaries of 
 the land mortgaged. It began on the llth of March, 1784, 
 by an advertisement in a weekly paper, and was, after the 
 first week, regularly continued in the supplement, which 
 was the usual mode observed by the printer. 1 he publica- 
 tion of the notice appeared, from a file of the papers, to have 
 been duly made, except as to the three last days ; but for those 
 days the paper or supplement was missing. A copy also 
 of this advertisement was, six months previous to the sale, 
 fixed up on the outward door of the court-house of the 
 county in which the lands lay ; and there remained until af- 
 ter the sale, on the llth of September following. At this, 
 one Christopher Bennett, a schoolmaster in the neighbour- 
 hood, officiated as auctioneer, in consequence of a request 
 from the appellant Teunis Bergen. The conditions exhi- 
 bited at the time of sale were as follows : " Brooklyn Town- 
 ship. Articles of the vendue for the sale of the land and 
 meadow land, belonging to the estate of Wilhelmus Bennett, 
 deceased, containing 60 acres, more or less, held this llth 
 day of September, 1784, by Teunis Bergen. Art. 1. That 
 the highest bidder is to have the lot or parcel of land when 
 struck off to him. 2. That the Indian corn and all the 
 planting produce thereon is to be excepted. 3. That a
 
 STATE OF NEW-YORK. 
 
 2. 
 
 ALBANY, 
 
 1804. 
 
 drain often feet wide for the Collick be excepted. 4. That 100 
 
 tails oi the cross fence of the corn be excepted. 5. That 
 
 the money bid for the land is to be paid at the execution Bergen & ano- 
 
 and delivery of the writings. 6. That in case the person 
 
 or persons, to whom it is struck off as aforesaid, cannot ^ 
 
 produce or procure a sufficient security, then and in such 
 case, the same lot or parcel of land shall be put up again ; and 
 if the same is then sold for less, the first buyer shall make 
 up the deficiency ; if sold for more, the first buyer shall have 
 no benefit by the sale." At the time of the vendue, no 
 persons were present but the auctioneer, the appellants, one 
 Ceivenhoven, and a tenant who lived on the land. 
 
 * There was but one bid, which was by the appellant, Mi- * & 
 
 ehael Bergen, for 7OO/. and, after having waited two hours, 
 to see it any person would come and offer more, it was 
 struck off at that sum to him ; and he, having attended to 
 purchase on behalf oi the other appellant Tennis, after a con- 
 veyance duly executed to him, reconveyed to Tennis. 
 
 Jt appeared that the premises were not, at the time of 
 sale, worth more than the principal and interest due j one 
 CoTuenhoven, to whom the land was offered, and who was 
 a creditor of the mortgagor, having declared he would not 
 give the amount of the bid. In 1788 the respondent came 
 back to this state, and on the 3d of February, 1800, filed 
 his bill. The respondent in support of the decree, alleged 
 in his case, that the sale could not bar the redemption for 
 which he prayed, as it was null and void, on the following 
 grounds: 1st. Because the power to sell, contained in the 
 mortgage,* "-was not recorded as deed.*} usually arc" before * Rev. Laius, 
 the execution of the conveyance to the purchaser. 2d. Be- -f See the act re- 
 
 , . .,,,,. l:tti:igto record- 
 
 Cause the notice oi the sale was uncertain, and that the ell- i ng deeds. Ibid. 
 
 i T O 
 
 rections of the statute were not complied with in the publi- 
 cation of it. 3d. Because the conduct of the appellant 
 Tcunis Bergen, touching the sale, and the proceedings pre- 
 paratory thereto, were actually fraudulent. 4th. Because 
 the power to sell, contained in the mortgage, expired \viih 
 die life of the donor. 5th. That the mortgagee was a trustee
 
 3 CASES IN ERROR IN THE 
 
 ALBANY, for the mortgagor, and as such, could not be a purchaser 
 ^*^\^ > oi the property, which he himself sold in that capnuiy. 
 
 Bergen &. ano- 
 
 v. CHANCELLOR. Mr. President The complainant has 
 
 filed his bill for a redemption ; to which the defendant an- 
 
 swered, and a number of depositions have been tak<-n, dis- 
 closing the circumstances stated in the case. On tlu.se, 
 several questions have arisen, which have been very fully 
 discussed by the counsel for the parties ; but ail of which, 
 the first excepted, relating to the manner in which the 
 power has been executed, must necessarily depend upon its 
 validity at the time of such execution. The first of these 
 questions, then, in the natural order in which they present, 
 is, whether the power contained in the mortgage, expires 
 with the life of the mortgagor? In the English code, no 
 principles are to be discovered, which have been applied in 
 their courts to bar an equity of redemption, by the mere act 
 of the mortgagee, without the aid of judicial intervention. 
 
 * 4 This *clevice appears of native growth, originating from the 
 
 circumstances of this country, and, probably, principally from 
 the disparity between the actual product, and estimated 
 value of real estates. This may have rendered necessary a 
 more summary and less expensive mode ot barring the 
 equity of redemption, than that which obtained through the 
 medium of chancery, a desirable object. It seems that 
 previous to the year 1775, it had been a practice to intro- 
 duce into mortgages, clauses authorizing a sale by mort- 
 gagees, and that many estates were then held under such 
 1775. sales. A statute was passed, reciting this circumstance, and 
 
 L. .A. 1.480. decaying that no good and bona fide sales of mortgages, 
 lands, tenements, or hereditaments, made or to be made by 
 mortgagees or others, authorized thereunto by special power 
 for that purpose in due form of law, from him or them who 
 had the equity of redemption, shall be defeated to the preju- 
 dice of the bona fide purchasers thereof, in favour of, or for 
 the advantage of any person or persons claiming a right of 
 redemption in equity. To this was added a. proviso, 

 
 STATE OF NEW-YORK. 
 
 that this should not prejudice prior liens by mortgages exe- ALBANY, 
 cuted before such sale, judgments, or decrees in equity. This ^^^ 
 statute saved the interest of mortgagees deriving title under Bergen & ano- 
 mortgages executed before such sale, and all creditors, " to 
 
 whom the mortgaged premises, or any part thereof, was be- __. ' ^^^ 
 
 fore bound by any judgment at law or decree in equity." 
 It appears to have been intended as a declaratory act, and if 
 so, the proviso seems to contain a legislative declaration, 
 that the power to sell did not irrevocably rest, as a right 
 in the mortgagee ; for, if it did, the after acts of the mort- 
 gagor, or the judgments and decrees rendered against him, 
 subsequent to the execution of the power, could not detract 
 from the right of the mortgagee, empowered to sell; that it 
 was intended they should, is to be collected from the consi- 
 deration that the word before, in the latter clause, must 
 clearly relate to the sale, and not to a period anterior to the 
 execution of the power. But it may be taken in that sense, 
 or as intended for greater caution, and as leaving the power 
 to be construed as respects the cases excepted, without be- 
 ing affected by the statute. In either case, it cannot be 
 considered as affecting the question in aid of the power. 
 The powers treated of by Porvell, in his admirable treatise -PoweH on Paw- 
 on that subject, were, as he states, originally mere modifi- 
 cations of uses, whatever was equitable in which, the statute 
 *of 27 H. VIII. transferred to law: thus he distinguishes 
 powers in relation to donees, and collateral powers, as simply 
 relating to uses and trusts, and the enabling and restraining 
 powers, as mere branches from the same generic trunk. 
 I take it therefore that the doctrine deduced from Powell^ 
 as directly applying to the present subject, cannot be con- 
 sidered as correct, and that the principles by which it is to 
 be tested, are to be sought for elsewhere. If the power in Co. LUt.^ 52.^2 
 question was a naked authority, substituting the mortgagee tedUBoco,20*- 
 or his representatives to represent the person of the mort- 
 gagor, it is conceded it must expire with the life of the per- 
 son creating it. But it is insisted, an inseparable connexion 
 exists between the power and its object, the estate; that
 
 5 CASES IN ERROR IN THE 
 
 ALBANY, the duration of the former must of necessity be commen- 
 
 1804 
 
 (s^^vy^^ surate with that of the interest in the latter, and that it can 
 
 Bergen & ano- only be exhausted by its actual execution ; or that the power 
 
 01 u 
 
 v. is in the nature of a covenant, running witn the mort- 
 
 Bennett. , . 
 
 .-:.- -- - gaged premises. 1 hese positions I shall consider sepa- 
 
 rately. As to the first : If a second mortgage was executed, 
 intermediate the execution of the power, and the sale under 
 it ; the second mortgagee is supposed to acquire an equitable 
 lien, for the satisfaction of his security, on the mortgaged 
 premises, if the fund mortgaged is more than adequate to 
 the discharge of the first. An equity of redemption is con- 
 sidered as a subject to which a lien arising from a judgment, 
 or decree, may attach. In neither case, can the subsequent 
 encumbrances be considered as united in interest with the 
 first. On the contrary, their relative situations show there 
 must always be a collision, and frequently a direct opposi- 
 tion of interest. On the footing of a revocation of an au- 
 thority, their situations are compatible with ihe practice 
 which has prevailed on the subject ; but if the power is con- 
 sidered as an absolute vested right, the subsequent mort- 
 gages, judgments, and decrees, must be effectually over- 
 reached by the sale, which must undoubtedly, on that 
 ground, relate to the period when the right was acquired. 
 The situation of the mortgagor and mortgagee at law, if the 
 authority is to be tested by strict legal principles^ operates . 
 against considering the power as an interest combined with 
 the estate granted ; for, to all legal purposes, the fee, upon 
 the execution of the mortgage, vested in the mortgagee, sub- 
 ject to the usual defeasance. At law, therefore, the title 
 acquired by the purchase under the power, could only be 
 
 * g cumulative ; and if so, *the revesting the estate, depending 
 
 upon the contingency of payment in compliance with the 
 condition, the interest of the mortgagee would be destroyed 
 by such payment, and in either case the power must be ren- 
 dered inoperative. If such is the situation of the parties at 
 law, what reason can there be for an equitable interposition ? 
 The principles that this court pursues and cherishes will
 
 STATE OF NEW-YORK. 
 
 prevent it from relaxing the rules of law, unless it be for ALBANY, 
 
 the purpose of promoting substantial justice. The intent ^_ ^~^* 
 
 of the parties has always been permitted to have a powerful Bergen k au 
 
 effect in the construction of deeds : but though the intent in v. 
 
 ... Bennett. 
 
 this case to delegate to the mortgagee, his executors, aami- _______ 
 
 ni.strators, and assigns, a power to make a sale, is clearly to 
 be inferred, it does not afford as satisfactory an inference 
 that the representatives of the mortgagor were intended to be 
 equally bound with himself, to continue that power ; and if 
 not, there is no equitable principle on which the power can 
 be extended beyond its mere legal operation. I have not 
 been able to discover, that the doctrine contended for, that 
 theporver is to have equal duration with the estate, has been 
 recognised in any instance of this kind. Nor do I know a 
 case, analogous to this, in the books ; and from the industry 
 and ability of the counsel who argued this cause, as well as 
 my own fruitless researches, I think I may venture to say 
 that none exists. Wherever it rests in the discretion of the 
 court, to give a more liberal or restrained construction to 
 the acts of parties, it is consistent with the principles 
 which regulate the conduct of this court, to examine the 
 tendency of the several constructions which they will 
 admit, and to mingle the inconveniences of adopting one or 
 the other of those presented, as an ingredient to preponde- 
 rate the scale, otherwise equally poised. By giving these 
 powers a duration beyond the life of the mortgagor, they 
 may in many instances disinherit his heirs ; for here the 
 parol cannot be permitted to demur ; here is no saving of the 
 rights of an infant, till his full age. The sale, if admissi- 
 ble at all, must be absolutely conclusive. By considering 
 the right of sale as blended with, and coextensive in its du- 
 ration with the estate, subsequent encumbrances, by judg- 
 ments, decrees, and mortgage, must be completely at the 
 mercy of the first mortgagee. For if this right is a vested 
 right, assimilating to that of property, every sale under it 
 must have a retrospective effect, and completelv destroy all 
 encumbrances, intermediate to its acquisition, *and the saje * 7
 
 ALBANY, 
 
 1804. 
 
 ther 
 
 v. 
 Bennett. 
 
 under it. These are consequences of great importance, 
 which I think this court cannot countenance ; but on the 
 Bergen V & ano- contrary ought to resist, especially as the primary object of 
 the mortgage, the enabling the mortgagee to hold the land 
 mortgaged, as a pledge for the payment of the debt, is thus de- 
 feated, to the'prejudice of the mortgagor's representatives, 
 and as devices calculated to bar the equity of redemption, 
 which, as susceptible of being wrested to oppressive pur- 
 poses, ought to be leaned against as inconsistent with the 
 original intent. Though this, I believe, is unexplored 
 ground, I have very little hesitation in saying, that from my 
 view of the subject, the doctrine of irrevocability cannot be 
 sanctioned. As to the second position, that this power is 
 to be taken as a covenant running with the mortgaged 
 premises, there are no words of covenant. It imports to 
 be a new grant of a power ; it is a device intended to fore- 
 close the mortgagor, without the intervention of judicial ex- 
 amination ; and, if a covenant, it must become a subject of 
 such examination, before it can have complete effect. If, as 
 this clause is contained in an indenture, it is to be consider- 
 ed as the words of both parties, it might perhaps be con- 
 strued a covenant at law, but that would not better the situ- 
 ation of the defendant ; for the mortgage vests the estate in 
 the mortgagee, and his heirs ; the power is to him, his ex- 
 ecutors, administrators and assigns. This, if a covenant, 
 could not run with the land ; for to effect this, there ought to 
 be a privity of estate between the representatives on whom 
 the power and the estate would devolve upon the death of 
 the original parties ; here the heirs of the mortgagee, by the 
 limitation of the estate, would take it, but the right derived 
 from the power would pass to the executor ; and thus the 
 instant the mortgagee died, the connexion between the 
 estate and the persons authorized to execute the power, 
 would dissolve. A stronger reason for not suffering it to 
 conclude the heirs, is, that the defendant's title originated in 
 a mere personal charge, and the same reasons which have 
 already been given against a liberal extension of a power.
 
 STATE OF NEW-YORK. 7 
 
 would operate as forcibly not to extend the covenant by im- ALBANY, 
 plication. If, however, it was to be considered as a cove- v^^-^y 
 nant, binding on the heir at law, I should not be disposed Ber ** an - 
 to exert the powers of this court, to aid in concluding the B *' ett 
 mortgagor's representatives, as the estate is still in the hands , 
 of the representative of the mortgagee, by *giving efficacy * 3 
 
 to the covenant here. It would be contrary to what I con- 
 ceive to be the established principles in this court, which are 
 to endeavour as much as possible to compel the parties to 
 adhere to the true spirit and meaning of their original con- 
 tract in cases of mortgages, the security of the sum advanced 
 to the mortgagor. Some other points, involving considera- 
 tions of great interest, and extent, as to the doctrine of mort- 
 gages, were subjects of discussion on the arguments of this 
 cause, but thinking, as I do, that the power contained in the 
 mortgage would not warrant the sale, it would be useless to 
 travel through these points, which merely relate to the mode 
 of its execution. Upon the whole, I am of opinion, that the 
 complainant ought to be permitted to redeem ; that it ought 
 to be referred to a master to state an account between the 
 parties, of the amount of the principal and interest due on 
 the mortgage, the clear annual value of the mortgaged pre- 
 mises, and the nature of the improvements made by the de- 
 fendant. 
 
 Roger t, for the appellants. The respondent has lain by 
 twelve years with the property under his eyes. In that time 
 he never makes any application to redeem. He is silent till 
 the premises are improved at an enormous expense, and 
 have risen greatly in value. This is like waiting for a rise 
 in stock, after forfeiture of the mortgage. 2 Atk. 303.* The * Loclwod r, 
 
 E-wer. But had 
 
 lapse of such a period, as in the present case has taken no interest bee* 
 
 , paid or demand- 
 
 place, is, we contend, when a person is on the spot, an ac- e d, the very time 
 
 quiescence in what has been dorte. If not that, at least a f n *^ C Me"aiiu- 
 laches, against which this court will never relieve. It is not Jb^" 
 necessary at this distance of time to prove continuance of the ^ O a r s c e cl ^ ur ^ $ k n ' t 
 notice on the court-house door, and every minute exactitude necessary. See 
 
 Aine? v. Dufnitf, 
 n.(2)
 
 CASES IN ERROR IN THE 
 
 ALBANY, of publication. It is enough to show it generally, or even 
 once, as under the absconding debtors' act. The only in- 
 
 termission in advertising is of three days, and for those the 
 papers are wanting. But, without them, the six months are 
 complete ; for, in legal acceptation, unless when otherwise 
 expressed, a month in a statute means according to lunar, 
 and not calendar computation. 1 Com. Dig. 503. ( B.) 1 Black. 
 45(X j 6 Z>. & . 224. f It is sufficient in any notice 
 
 * Lacon \.Hoo- of the kind in question, to state the quantity of the land, the 
 
 per. 1 Esp. Rep. 
 
 246. s. v. But owner's name, the township and county, and the encumbrance 
 
 if it relate pure- . 
 
 jy to mercantile under which sold. A specification of boundaries would 
 
 transactions, the . , 
 
 term then means not i to tne community at large, render it more precise. 
 not ale a''* 1 'lunar ^ ne P ower * s not a distinct deed, but part of a mortgage, 
 month. There- # anc l must therefore be registered or recorded as that is. 
 
 fore, m charter- 
 
 parties it has the I use the words as sunonumes, because we find in Various 
 
 calendar accep- 
 
 tation. Jolly v. edit. p. 3. 01 Appendix, they are used as synonymous. 13e- 
 Rep- 186. Ami sides, the object of the act is directed to third persons ; it 
 was f rame d for the benefit of purchasers, and not of the 
 mort g a gor, except as to that part of the clause which con- 
 is by calendar nnes to persons of twenty-five years of age and upwards, 
 
 and not by lunar > 
 
 months. Burn, the right of giving such powers. The provision of having 
 
 3'24. 2 Eg. Ca. . 
 
 ji6r.eos.pL3B. the power recorded, before execution ot the conveyance, 
 
 * 9 shows it is meant only as evidence of title in the purchaser, 
 
 to establish his irredeemable right in the land. The English 
 authorities demonstrate, that with them, register acts are 
 only for the benefit of buyers to give notice of charges. 
 The preamble of our act establishes a similar intention in 
 our legislature. Therefore this, like all other statutes, is 
 to be construed only with a view to suppress the mischief, 
 and advance the remedy. The sum due on the mortgage 
 at the time of sale, was 9247. the refusal of Coivenhoven to 
 take it at 700/. does away all charge of fraud ; nor does the 
 non-attendance of persons at the vendue, afford room to in- 
 fer the existence of any ; the very amount of the encum- 
 brance might keep them away, this being apparent in the 
 notice. As to the power, that could never die with the 
 donor. He could not have revoked it in his life. It is an-
 
 STATE OF NEW-YORK. 
 
 nexed to the security. In the common case of a power, ALBANY, 
 accompanying an assignment of debts in satisfaction of a 
 demand, it is irrevocable ;* and that which cannot be re- 
 voked, survives. It is plainly a power coupled with an in- 
 
 Bennett. 
 
 terest, and therefore runs with that interest. 3 Atk. 714.J __ 
 
 1 Vez. 306. S. C. 1 Bac. Abr. 321. 2 P. Wms. 120.J The 
 
 injury which it is apprehended the heir might sustain, can ** e P; 5f>5 - *'_** 
 
 have no weight ; for, as the ancestor might at once have Greenbank. 
 
 * Eyre v. Coun- 
 
 sold absolutely, so he may order it to be done at a future tess of Shafts- 
 day. He had complete dominion over it, and had a right 
 to bar any, or all of his posterity. By the words of his 
 contract, he has agreed to do this, on the happening of 
 certain events. That the mortgagee is trustee for the 
 mortgagor, is only true sub modo, as to the surplus. But 
 allowing it to be so, there is no positive rule against a trus- 
 tee's purchasing the subject matter of his trust. Whether 
 the purchase will be valid or not, will depend on circum- 
 stances. 5 Vez. iun. 678. <S The rule, however, can never Campbell f. 
 
 Walker, 
 apply where the trustee stands in the relation or cestut que 
 
 trust also. In this situation a mortgagee *must be viewed, * 10 
 
 as he is interested to the amount of his mortgage, and bound 
 to take care the estate is not sold under the amount due 
 upon it. This distinction was taken in the cases of Alaire 
 v. Munro, and Le Roy v. Vreeder et al. Besides, the sale 
 is under a statutory provision, meant to have the effect of 
 a foreclosure. This, therefore, is in some degree a pur- 
 chase under a judicial proceeding, and had it been before a 
 master in chancery, by virtue of an order of court, there 
 could be no doubt on the subject. The present mode was 
 intended by the act, to be in lieu of a bill to foreclose ; it is 
 therefore attended with the same consequences. The re- 
 demption then ought to have been sought within five years. 
 Lock-wood v. Liver, 2 Atk. 303. A purchase by executors 
 of a mortgagee, through the intervention of a person who 
 acted as trustee for them, was not impeached. Tooke v. 
 Hartlet/, 2 Bre. C. R. 126.*
 
 10 CASES IN ERROR IN THE 
 
 ALBANY, Hamilton and Tompkins, contra. The power in the mort- 
 v _-.--' g a e nas been registered in the customary manner adopted 
 Bergen fc a no- as to mortgages themselves. The act is specific that they 
 v . shall be recorded previous to the execution of the convey- 
 
 j^nnett. ance? as deeds usually are" We all know this is in a 
 book kept for the purpose, and in hcec verba. This too has 
 been the practice, and communis error facit jus. It is a co- 
 temporaneous exposition of the law. The intent of the le- 
 gislature we cannot inquire into ; we see what they have 
 ordered. It would seem that the legislature contemplated 
 some mode distinct from that prescribed for mortgages. It 
 is an essential prerequisite to the execution of the convey- 
 ance, and not to be dispensed with. The proceedings un- 
 der the power being in lieu of a bill to foreclose, it is ne- 
 cessary strictly to adhere to every form, however minute. 
 Every compliance must be made to appear. The deficiency 
 of proof in establishing the notices required by the act, 
 renders the sale absolutely void ; and, as the notice on the 
 court-house door was cut from a newspaper, allowing the 
 publication in the paper to have been for six months, the 
 notice on the door could not have been affixed for that pe- 
 riod. Besides, it was in a supplement ; and a supplement 
 to a paper is not the paper itself. This exactitude is indis- 
 pensable, because the law operates against a peculiar favour- 
 ite of chancery. A favourite so great, that any clause, 
 restraining the right of redemption, will ever be set aside, 
 as repugnant to the original object of the parties, and con- 
 * 11 trary to the nature of a mortgage, *which in equity is re- 
 
 t Jason v TV- g ar kd merely as a security for money lent.f If therefore 
 
 res, 2 '. Ch. Ca. j t b e j n a deed, it is viewed as the result of an undue in- 
 
 33. Howard v. 
 
 Harris, i Fern, fluence over the mortgagor, arising from the power which 
 
 33. 190. JKfwny. 
 
 ton v. Gardiner, a lender naturally has over the person borrowing. On this 
 
 cited in Howard r c 
 
 v. Harris. Wil- account no limitation of time, short or twenty years, can 
 Jnel> l prevent the exercise of this right, which is thus circum- 
 scribed, in analogy to ejectments at law, to preserve a uni- 
 formity of practice in all that relates to land. The foreclo- 
 sure having taken place, is immaterial, if the property, at
 
 STATE OF NEW-YORK. li 
 
 the time of filing the bill to redeem, be worth more than ALBANY, 
 the principal and interest due. A boundary is as necessary \^ r ^Jl tt ^j 
 a description of an estate as a county or town ; and the arti- Bergen & aao- 
 cles of sale vary the quantity from that mortgaged. These ^. er 
 
 and the reservations of the corn, &c. tended to lessen the 
 value of the premises. They form one of many badges of 
 fraud, apparent from the conditions of vendue, and the ap- 
 pointment of a schoolmaster as auctioneer. The mortgagee 
 is a trustee, and emphatically so for the mortgagor. It is 
 a settled principle that a trustee cannot purchase the object 
 of his trust. 2 Eg. Ca. Abr. 741. Holt v. Holt.* 1 Ch. Ca. ? The only point 
 
 in that c;ise re- 
 
 19O. Whaleti v. Whaleti^ 1 Fern. 484. Whitacre v. Whita- lating to trust is, 
 
 that it" a trustee 
 
 ere, Cos. temp. King, 15. 61. Whelpdale v. Cookson, 1 Vez. u f a term sur- 
 
 /-. ? it jir 17 - render and take 
 
 9. Crowe v. Dollar d, 1 Vez. jun. 215. Campbell v. Walker, o ? further tern., 
 Pe>z.jun. 678 to 682. Ibid, ex parte Reynolds, 707, 708. This Jjj3|[ be Jf r SJ5J 
 last case, which also refers to ex parte Hughes and ex parte * ^* c ' ( 
 Dumbell, 6 Vez. iun. was this: An assignee under a com- trustee, renewal 
 
 7 ^ u lease m his 
 
 mission of bankruptcy, purchased the estates of the bank- own name, and 
 
 . 11 r L- after mortgaging 
 
 rupt at auction ; they were ordered to be resold, Irom this H, assigned the 
 
 general principle, that an assignee could not be a purchaser, ^mption* to"a 
 Here the characters of trustee and cestui que trust were j 1 '-" 8 ^^ 1 ^^" 
 united, vet held that no purchase could be made, the per- The trustee sold 
 
 to a purchaser 
 
 mission of a court of chancery being necessary to sanction with noticeof the 
 
 _ original trust, 
 
 the transaction. In the case now before the court no pur- the purchase set 
 chase could be valid, because the power under which the 
 sale was made, had determined by the death of the grantor. 
 Co. Lift. s. 66. " If a man maketh a deed of feoflment to 
 another, and a letter of attorney to one to deliver to him 
 seisin by force of the same deed, yet if livery of seisin be 
 not executed in the life of him which made the deed, this 
 avaiieth nothing." The power was there collateral to the 
 land, and so here; for it goes to the executors of the mort- 
 gagee, while the land would descend to *his hcirs.J It ^ But the heipg 
 was therefore a mere lejral authoritv, between which and a of lhc rl ^" 
 
 gee would be 
 
 power there is a technical distinction. These latter took merely trustees 
 
 for his execu- 
 tors, Ellis v. Guavas, 2 Ch. Ca. 50. Tabor r Grawr, 2 Vvrn. 367. WndttaL cited 2 Vern. 
 19*. Turners, (,'rcnf, I Vern. IfO. 
 
 a
 
 CASES IN ERROR IN THE 
 
 their rise from, and were created by the statute of uses. 
 Allowing, however, that the power did survive, it ought to 
 Bergen & aoo- j iave k een s t r i c tly pursued, and every exception in the arti- 
 cles exhibited at the time of the auction, was, if not a fraud, 
 
 Bennett. 
 
 ,-,.-, _. at least a violation. None of the cases cited touch the pre- 
 sent ; Lock-wood v. Eivcr was a case of a mortgage of stock. 
 The determination was, that on such an interest there was 
 no equity of redemption. In the other case cited, there 
 had been a lapse of thirty years after foreclosure. Tooke \. 
 Hartley was a case of a lease for years, and there the 
 foreclosure had destroyed all privity between the parties. 
 
 Troiip and Benson, in reply* A principal question is, have 
 the statutory provisions regarding the sale under the mort- 
 gage been complied with ? All acts in par i materia, are to 
 receive a similar construction. The laws of 1774 and of 
 1753, are in pan matcrid. In that of 1753, the words re- 
 gistering and recording are used as synonymous ; therefore 
 in that of 1774 they must be considered as synonymes. The 
 act is silent as to the book where these powers are to be re- 
 corded, and as the provision must be for the information 
 of persons wishing to purchase, convenience requires it 
 should be in that book where the mortgages are registered. 
 The coteinporaneous exposition, and the communis error 
 relied on, are in favour of this position ; for by a certificate 
 from the clerk of the county in which the mortgaged pre- 
 mises lie, but one instance is found of the mode contended 
 for by the respondents ; whereas, twenty and upwards oc- 
 cur of that for which we insist. The advertising the notice 
 for six months is well proved, though the papers in which 
 it appeared are missing ; for when written evidence is lost, 
 the resort is always to parol. The exceptions were all in 
 favour of the mortgagor, for what was excepted now re- 
 mains ; and as to the corn, &c. the lands were in the hands 
 of a tenant, who, though his tenancy was at will, could not 
 be deprived of his emblements, on the landlord's determining 
 the tenure. The main question, however, for all the others
 
 . STATE OF NEW-YORK. 
 
 are but of minor importance, is, whether the power to sell ALBANY, 
 contained in the mortgage, was revoked by the death of the ^^^, 
 mortgagor ? The rule is, that a naked authority is revoked Bergen^ ar 
 by the death of the donor ; but *an authority coupled with ^ v.^ 
 
 an interest, survives to the donee. A naked authority is one J _ 
 
 granted without consideration, vesting no interest in the do- *= 1 3 
 
 nee, and to be exercised for the benefit of the donor. This is 
 the kind liable to be revoked by him, and expiring on his de- 
 cease. The authority in this case is of a different kind. It 
 is founded on a valuable consideration paid, vests an in- 
 terest in the mortgagee, and for his benefit it is to be ex- 
 ercised. This is the species which cannot be revoked. A 
 mortgage gives a conditional estate in fee-simple. To ren- 
 der it absolute, it was necessary to recur to chancery. This 
 being attended with expense and delay, was thought a 
 grievance, and to redress it, the power of sale came to be 
 inserted. It is, therefore, nothing more than the grant of 
 a special action to compel payment of the money, and this 
 for a valuable consideration. If a special action or remedy 
 be given, it carries to the donee an interest to effect the 
 object of the grant, which was here, to raise the money due 
 to him in a summary way. It becomes, therefore, a part 
 of the original contract, and is parcel of the security itself. 
 As such, it cannot be revoked by the donor. If it could, 
 he would be able to act against, and defeat his own. grant. 
 From this he surely ought, by his own deed, to be estop- 
 ped. As it is purchased for a valuable consideration, it 
 must survive ; for no grant of an interest to a grantee can 
 cease to operate by the death of the grantor. The mort- 
 gage works as a conditional conveyance in fee-simple. The 
 office of the power is to change the estate into an absolute 
 fee. Where an estate is created with a power to enlarge 
 that estate, can it be viewed in any other light than as a 
 part of that estate ? It is coexisting and commensurate 
 with the estate; necessarily, therefore, an authority coupled 
 with an interest, which of course survives. In the position 
 cited from Co. Lilt, the letter of attorney was to a third
 
 13 CASES IN ERROR IN THE 
 
 ALBANY, person, without consideration : here it is to the mortgagee 
 himself, purchased and paid for by him. Besides, the 
 
 Bergen & ano- power to give livery must, like a warrant of attorney 
 v . to confess judgment, be executed in the name of the grant- 
 
 or; which, after he is dead, cannot be done. This is not 
 
 the case with the power in a mortgage ; for the legal estate 
 being in the mortgagee, the conveyance is in his name% 
 The reason why it is to him and his executors, is because 
 the mortgaged premises are considered as personal estate. 
 
 * 14 The English ^jurisprudence furnishes nothing analogous to 
 
 these powers. But even under their system it has lately 
 been the practice to convey the mortgaged premises to 
 trustees, in trust, after forleiture to sell for payment of the 
 mortgage money. The principle with them is the same as 
 
 |But note that with us, to save the expense of a chancery suit.f Our 
 
 in England the . t , , , , . 
 
 newer of selling statute must be so interpreted as to render the sale it au- 
 "TtShe 'in. thorizes effectual. If the mortgagee has not the right to 
 tei-vention of a f a j r ly purchase, it would be defeated. It is often for the 
 
 <uourt of equity, 
 
 is doubted. See interest of the mortgagor that the mortgagee should buy. 
 
 U. ; Should only one half the money due be offered, and he be 
 
 restrained from bidding, the person of the mortgagor, if 
 alive, would be liable ; if dead and insolvent, must the 
 mortgagee stand by and lose his money ? To impeach a 
 purchase by a trustee, fraud, or making a profit, must be 
 shown. 3 Fez. jun. 749. the chancellor, speaking of this 
 rule against permitting trustees to purchase, says, " I do 
 not recollect any case where the mere abstract rule came 
 distinctly to be tried, abstracted from the consideration of 
 advantage made by the purchaser. It would be difficult for 
 such a case to occur ; for, unless advantage is made, the 
 act of purchasing will never be questioned. The rule is 
 laid down not very correctly in most of the cases where you 
 find it. It is stated as a proposition, that a trustee cannot 
 buy of a cestui que trust. Certainly that naked proposition 
 is not correctly true." The full value was given here, as 
 appears from the testimony. The reason why redemptions 
 of mortgaged premises are so much favoured in England*
 
 STATE OF NEW- YORK. 14 
 
 does not apply to this country. Their lands are under rent, ALBANY, 
 and produce an annual value. Ours afford no advantage, ^ ^_ l^_j 
 but from the enjoyment of the property itself. It is, there- Bergen fc ano- 
 fore, a matter of easy calculation, to know when an estate 
 can redeem itself, and whether worth more than the sum _ 
 due. To discharge land from a mortgage, we have no 
 mode but by a sale of the land itself. This is contempla- 
 ted by the parties at the time of their original contract, and 
 was the cause of introducing the power now in question. 
 The case cited from 5 Vez. jun. is not applicable to the pre- 
 sent. An assignee under a commission is not a trustee for 
 himself only, but for others also : when he purchases, he 
 therefore will not be permitted to exclude the other cestuis 
 que trust from the benefits which they may have a right to. 
 They say, " as you purchased to save yourself, you must 
 do it for us too." But had the purchase *been on behali * 15 
 
 of all the creditors, it could not have been disturbed ; for 
 the bankrupt, it is to be remarked, was not the party who 
 complained. A strong argument against the decree, is 
 the impossibility of going into an account of the labour, 
 improvements, and expenses of the mortgagee. 
 
 Per Curiam, delivered by KENT, ]. This case comes be- 
 fore the court on an appeal from a decree of the court oi 
 chancery, that the respondent be permitted to redeem. The 
 reason assigned for the decree was, that the power to sell 
 expired with the life of the mortgagor. This doctrine, if 
 sound, renders it unnecessary to discuss any of the other 
 points. If the power was extinct, the sale was null, and 
 the right of the respondent to redeem exists in full force. 
 It is proper therefore to turn our first attention to this point ; 
 and, although my examination of it has led me to a dif- 
 ferent conclusion, I have made it with the deference and 
 respect due to the court which pronounced the decree. It Co -^ ( - - * 
 
 I iijrf. 0. 
 
 is admitted that a naked authority expires with the life of 
 the person who gave it ; but a power coupled with an in- 
 terest is not revoked by the death of the grantor. In my
 
 15 CASES IN ERROR IN THE 
 
 ALBANY, opinion, the power contained in the mortgage is of the lat- 
 ter description. A power simply collateral and without in- 
 & ano- terest, or a naked power, is, when, to a mere stranger, au- 
 v. thority is given of disposing of an interest, in which he had 
 
 not before, nor hath, by the instrument creating the power, 
 Ylfi" Potveli on any estate whatsoever. But when power is given to a per- 
 
 J'otosr*, 8 10. J 
 
 12. Butler's son who derives, under the instrument creating the power, 
 
 note, 29S. to lib. , - . ...... 
 
 :i. of Co. Litt. or otherwise, a present or iuture interest m the land, it is 
 
 ron.'ffard. 415" t ^ ien a power relating to the land. These last powers , are 
 subdivided into powers annexed to the estate, and powers 
 in gross. Both are considered as powers with an interest, 
 because the trustee of the power has an interest in the estate, 
 
 JTardres, 415. as well as in the exercise of the power. If, as one of the 
 old cases expresses it, the person clothed with the power 
 hath at the same time an estate in the land, the power is 
 not collateral, because it savours of the land. The power 
 now in question answers exactly to this definition of a pow- 
 er with an interest, because the mortgagee has at the same 
 time a vested estate in the land, and it does not answer at 
 all to the definition of a powsr simply collateral ; for that is 
 but a bare authority to a stranger, who has not, nor ever 
 had, any estate whatsoever. I might, perhaps, rest satisfied 
 with giving this description of the two powers, drawn 
 
 "* 16 from approved authority; *but I think the point is suscepti- 
 
 ble of more precise and definite illustration. If a man, by 
 his will, directs his executors to sell his land, this is but a 
 bare authority without interest ; for the land, in the mean 
 time, descends to the heir at law, who, until the sale, 
 would at common law be entitled to the profits, and, being 
 but a naked authority, if one executor dies, the power at 
 Co. Litt. n*. common law would not survive. f But if a man devises his 
 
 n.lSl.b. ^36. a. , ,,11- 
 
 3 Salk. 2?r. land to his executors, to be sold, then there is a power 
 
 s^29ito sio" coupled with an interest ; for the executors, in the mean 
 
 time, take possession of the land and of the profits. In 
 
 this case, as the estate, so also the trust, would survive to 
 
 the surviving executor. There is a very striking analogy 
 
 | See the note (-2) of Mr. Hargrave on this point, in Co. Litt. 113. a> 
 
 3
 
 STATE OF NEW-YORK. 10 
 
 between this case, of a devise of land to executors to be ALBANY, 
 sold, and a mortgage of lands with a power to sell. In t ^J_^ ia _ j 
 both cases, the estate passes to the person clothed with the B ergen & ano- 
 power, and in both cases the power is given in trust, to an- l r 
 
 swer a specific purpose. I cannot discern any distinction 
 between the cases, sufficient to render the power in the one 
 instance naked, and in the other coupled with an interest. 
 It is not a power with interest in the executors, because 
 they may derive a personal benefit from the devise ; for a 
 trust will survive, though no ways beneficial to the trustee. 
 It is the possession of the legal estate, or a right in the sub- 
 ject, over which the power is to be exercised, that makes 
 the interest in question; and where an executor, guardian, 
 or other trustee, is invested with the rents and profits oi 
 land for the sale or use of another, it is still an authority 
 coupled with an interest, and survives. It has been thus 
 frequently adjudged. This case also is still more analo- 
 gous to the one of a conveyance of property by way of 
 pledge, or in trust, with an agreement for the mortgagee 
 to sell in case of default. This is a practice known in the 
 English law, and it was taken for granted by the lord chan- j ^-J'^ ~ c< 
 
 cellor, in the case of Tucker, administrator, v. Wilson, that 4^. it was a 
 
 . case of absolute 
 
 where there existed such an agreement, the mortgagee conveyance 
 
 might sell after the death of the mortgagor. It seems to 
 have been admitted, not to have been competent for the 
 mortgagor to revoke this authority to sell, because it was 
 granted for the benefit of the mortgagee. He might per- ing exactly the 
 
 same thin". 
 
 haps embarrass the execution of the power, by a subse- Lock-wad et. 
 
 i i MI r. Ewer, 1 2 ~ 
 
 quent mortgage or judgment, but the power wornd still re- 303- 
 main^in full force, although the land, in the hands of the 
 purchaser under the power, might become subject to such * t y 
 
 subsequent lien. In short, this power is ^altogether differ- 
 ent from that of a mere naked authority : the latter is no 
 better than a letter of attorney given to a stranger to the 
 estate, as in the instance given by Coke, of a letter of attor- 
 ney to make livery of stisin. This is revocable by the 
 grantor at his pleasure in his life-time, and is absolutely re-
 
 1789. 
 
 If CASES IN ERROR IN THE 
 
 ALBANY, yoked by his death. The grantee of such a naked power, 
 . 80 ^"y having no interest connected with the power, has, of course, 
 Bergen & ano- no interest affected by the revocation. The present power 
 l ^ er is in every view distinct from the other. I conclude, 
 
 Bennett. therefore, that the power to sell was not revoked by the 
 i Jmt _ 52 . b . death of the mortgagor, and that the decree cannot be 
 supported on the ground that was taken in the court below. 
 I have bestowed some pains upon this question, because I 
 am of opinion, that the grounds of a definitive decree in 
 chancery, resting upon what is assumed to ; ^e a principle of 
 law, ought not to be questioned and overturned without 
 much care and consideration. It remains to see whether 
 any of the other points, that were raised by the counsel up- 
 on the argument, will bear out the decree. It is contended, 
 of jv. F. that the power was not recorded according to law. The act 
 of directs, that all powers to mortgagees, for making sales in 
 fee, shall be acknowledged, proved, and recorded as other 
 deeds usually are, be fore the conveyances for the sale be ex- 
 ecuted. I incline to think the act was complied with. The 
 power was registered in the book of mortgages. The sub- 
 ject matter of the whole act is mortgages ; and, in the pre- 
 ceding part of it, it speaks of deeds with a defeasance in a 
 separate writing, ar.d of conditional deeds, ?nd declares them 
 to be the same as mortgages. It io no vioient construction, 
 therefore, to consider the words, recorded as deeds usually 
 are, to refer to mortgag - deeds, 'hey being the only deeds 
 within the purview and other provisions of the act. These 
 powers also are usiiall;. contained in the same deed with the 
 mortgage, and to rrgisur the mong^ge part of the deed in 
 one book, and the power part in anomerbook, would be in- 
 convenient and idle. Admitting the proper book to have 
 been selected, the power was we)l records , tor it was re- 
 corded at length, as far as the mere powei m qiv. ,tio'.. -vent, 
 and nothing was omitted but the c ,vc;>.-,r<. tf. the fcot of it, 
 declaring the sale to be a 'vrp;--:u;:. bn-. P.". i! this be not 
 the true construction of the act, I am 
 omission to record the power w
 
 STATE OF NEW-YORK. 
 
 ALBANY, 
 
 1804. 
 
 Bergen & ano- 
 ther 
 v. 
 Bennett. 
 
 * 18 
 
 only use in recording it, is for the benefit of the purchaser, 
 and *it does not lie with the mortgagor to object to the va- 
 lidity of the sale by reason of that omission. He can have 
 no concern or interest to be affected, whether it be recorded 
 or not. The next objection is, that the notice of the sale 
 was not according to the directions of the act. It is al- 
 leged, that the proof of the six months' notice in the news- 
 paper, and on the court-house door, is not, as it ought to be, 
 full and perfect ; and some nice criticisms have been made 
 upon its deficiency. I shall forbear entering into this exa- 
 mination. Considering the lapse of time since the publica- 
 tion was made, the proof of the notice is pretty well made 
 out, and every defect may well be supplied with a reasona- 
 ble presumption. I have, however, a short decisive answer 
 to the whole objection ; and that is, that after a mortgagor 
 or his heir has lain by for sixteen years, he shall not then be 
 permitted to come in and question the regularity of the no- 
 tice. Public convenience essentially requires that we should 
 establish this principle. It would be too rigid and severe to 
 exact all these minutiae of proofs, after such a length of time. 
 It was next urged, that the exceptions made and published 
 in the conditions of sale, rendered the same void. The ex- 
 ceptions which have been deemed as of serious moment, 
 (for I pass by the exception of the corn on the ground, and 
 the 100 rails, as not requiring an answer,) are, a drain for 
 the collect of ten feet wide, and certain terms imposed on 
 the purchaser, who could not give sufficient security. I am 
 not inclined to question the doctrine, that a mortgagee is 
 bound to pursue his power strictly, and that, although he Co. Liu. 113. 
 may sell part of the land at one time, and part at another, 
 yet that he cannot clog and encumber the part that he sells, 
 but must sell simply and unconditionally the whole interest, 
 as the same was conveyed by the mortgagor. I cannot 
 however intend, that this principle was violat d in the pre- 
 sent case. The exception of the ten feet may, or may not, 
 have been- an encumbrance to the premises. It could not 
 have been made, or intended as a benefit to the mortgagee,
 
 18 CASES IN ERROR IN THE 
 
 ALBANY, who became the purchaser j for the premises, it appears, 
 ,_ < _ 1 ^ 4 1 1 _, were not bounded upon him. He couFd have had no motive. 
 Bergen & ano- For the drain being excepted from the sale, would, if crea- 
 th v er ted then for the first time, have remained in the heir of the 
 
 mortgagor, and it must still remain his property. I think, 
 however, we ought to intend, after this distance of time at 
 least, that this drain had antecedently existed, and was 
 % ig founded on usage, or was an exception *in the previous 
 
 deeds of the land. It is more probable, then, that exception 
 was put in for gi-eater caution, and that the mortgagee himself 
 had taken the premises subject to that exception. It would 
 be unreasonable and impolitic, in my opinion, to disturb 
 that sale at this day, by reason of a circumstance of such 
 small moment, as a matter of fact, in which no fraud or gain 
 can be imputed to the one party, or real injury to the other ; 
 and when, by fair intendment, the whole can be so easily 
 reconciled with strict principle on the subject. The other 
 objection is, that, by the conditions of sale, unreasonable 
 terms were imposed on the purchasers, who could not give 
 sufficient security. These sales at auction may be insisted 
 on to be cash sales. The mortgagee may have his convey- 
 ance ready to execute, and may exact the money as soon as 
 the land is struck off. If he is willing, however, to allow 
 a credit to the purchaser, and if he be entitled to allow it, 
 he may then, no doubt, dictate the terms and extent of the 
 security, so as the same be not unreasonable. If the pur- 
 chaser is not satisfied with these terms, he has only to ad- 
 vance the money which the mortgagee is entitled to demand,, 
 and if offered, bound to receive. But whether the mortga- 
 gee be entitled to sell upon credit and security, or is in all 
 cases bound to exact the money immediately, it is unneces- 
 sary to decide ; because the sale in question was not a sale 
 upon credit, but a sale equivalent to a cash sale, since it was 
 in reality a sale to the mortgagee himself. If he could not 
 have sold upon security, but for cash only, these terms that 
 were given out were null and void, and could have had no 
 effect upon the sale, or upon the purchasers ; and if he was
 
 STATE OF NEW-YORK. 19 
 
 entitled to sell on credit and security, I should not consider ALBANY, 
 the terms imposed to have been so unreasonable, as that the v^p-^-^/ 
 sale ought now be set aside, from that circumstance alone. Ber s e t n h ^. a11 
 I do not, therefore, consider these conditions of sale as ^^ 
 forming any solid ground for the present bill, to set aside _ 
 the sale and redeem. Another objection to the sale is, that 
 the mortgagee was himself the purchaser ; and it is a sound 
 and established rule of equitable policy, that a trustee cannot 
 himself be a purchaser of the trust estate, without leave 
 from chancery ; and the reason of the rule is, to bar the 
 more effectually every avenue to fraud. This rule was re- 
 cognised by this court in the cause of Munroe and others v. 
 Allaire; but a distinction was there taken between the case 
 of a suit against a trustee, *to set aside a purchase, he having 
 procured the formal legal title, as in the present case, and 
 where a suit was by him commenced to complete his pur- 
 chase, as in the case cited j and it was observed, that in the 
 former case, and the observation is consequently applicable . 
 
 to the present case, that equity would not interfere as of 
 course, to set aside the purchase ; for although equity will 
 not aid, it is not bound in every case to disturb such a pur- 
 chaser. It has also been made a question, whether the rule 
 would apply to the case of a trustee, who was himself a ces- 
 tuique *riwf,and was obliged to purchase, in order to avoid 
 a loss to himself by a sale at a less price. But I shall for- 
 bear for the present from giving any opinion, whether the.se 
 distinctions are well taken or not, because the rule being ad- 
 mitted to be absolute and universal, it is still agreed, that the 
 catui que trust must come in a reasonable time to set aside ljfi.jp. 6*. 
 the sale, or he will not be heard. What shall be termed a 
 reasonable time, is not susceptible of a definite rule, but must, 
 in a degree, depend upon the circumstances of the particu- 
 lar case, and be guided by sound discretion in the court. 
 In this case, the cestui que trust comes after sixteen years, 
 finding it a gaining bargain, and being all that time under 
 no legal disability. Is this coming within reasonable time, 
 to set aside a sale on the ground of this technical rule ol
 
 20 CASES IN ERROR IN THE 
 
 ALBANY equity ? Suppose the mortgagee, instead of selling the 
 iso4. lands, had entered into possession of them, under the mort- 
 S a S e > anc ^ enjoyed them as his own : twenty years' possession 
 m sucn a case W ould have been a bar to a bill to redeem. 
 This is a settled rule in chancery. And ought not sixteen 
 3P "wms 287 years' possession, after a sale according to the directions of a 
 3Bro. 64i. statute, and which is a species of foreclosure by law, to be 
 esteemed equal to twenty years' possession, commencing with- 
 1 Rro. Par. Ca. out such solemnity ? In the case of Wichalse* executor, v. 
 
 414. 2 Eg. Ca. , 
 
 Mr. 177. S, C. Short, the party came into chancery to redeem eleven years 
 after a foreclosure, and that too on the ground of a parol 
 declaration of the mortgagee, that he was willing to receive 
 back his money ; but the court of chancery held, (and the 
 decree was affirmed in the house of lords,) that the mort- 
 gagor came too late after a lapse of eleven years, and that it 
 would be a bad precedent to open the foreclosure, as it 
 would render the property, acquired under such circum- 
 stances, extremely precarious, and would be attended with 
 mischievous consequences to the mortgagee, who, in the 
 mean time relying on his title, had improved the estate, and 
 sif 21 *kept no account of the rents and profits. Such a practice 
 
 would shake an abundance of titles. In the case, likewise, 
 of Lanta v. A. andW. Crispe, a rule to redeem was refused, 
 after the mortgagor's acquiescence for six years, under a 
 foreclosure by his own consent. These cases are certainly 
 not stronger than the present, and \ think the acquiescence 
 of the cestui que trust in the purchase by the mortgagee, 
 and which is necessarily presumed from his delay, ought 
 now to conclude him. The allowing him to redeem, would 
 establish a precedent much more impolitic and inconve- 
 nient in its consequences, than the violation, in this case, 
 of the rule, that a mortgagee shall not purchase. I con- 
 clude, therefore, under the circumstances of this case, 
 none of the objections raised are sufficient to justify the 
 setting aside the sale of 1784, and consequently that the 
 decree of the court of chancery ought to be reversed, and, 
 that the bill below to redeem be dismissed with costs?
 
 STATE OF NEW-YORK. 21 
 
 John B. Church against John Bedient, Gideon Kim- 
 berly, and Walter Hubbell. 
 
 IN error, on a bill of exceptions to the supreme court, 
 
 resiurauun, an 
 
 in an action on a policy of assurance upon the brig John, abandonment, 
 
 , the fact of resto- 
 
 valued at 5,000. The vessel had been captured on the ration, though 
 
 , r -r, 7 j unknown at the 
 
 19th of January, acquitted on the 20th ot February, and time of abandon- 
 restored to the captain with freight amounting to g2,OOO. ^WJJJf JJ2 
 He then refitted and repaired her at an expense of only jj^"^* c \^ 
 
 &80O, and proceeded on his voyage. On the 5th of March, The assured, un- 
 der such circum- 
 the assured, beinc; unacquainted with the restoration of the stances, being 
 
 _. , . , entitled to reco- 
 
 vessel, abandoned ; after this, the John arrived, and, on a ver only accord- 
 
 , r i i L u ing to the final 
 
 tender to the underwriters, being refused by them, she was cy nt> 
 
 sold by the assured, who, with the money in their hands, 
 brought their suit against the plaintiff for a total loss, aver- 
 ring it by capture. Mr. Justice Raddijf, before whom the 
 cause was tried, charged that as the assured were, on the 
 5'th of March, when they abandoned, ignorant of the fact 
 of restoration, which took place on the 20th of February 
 preceding, they had a right to abandon, and claim for a 
 total loss ; that being so entitled, they were by law war- 
 ranted in demanding the whole amount, without deducting 
 any thing for the proceeds of the brig. , 
 
 Pendleton, for the plaintiff. The questions arising on this 
 case are, whether an abandonment can be made, after a 
 restoration *in fact, though the assured be ignorant of such * 23 
 
 fact at the time of abandonment made ? Secondly, whe- 
 ther, allowing the abandonment could be made, the assu- 
 red in this case ought not to set off, or deduct from his de- 
 mand the amount received from the sale of the brig ? As 
 to the first question, it is to be considered that a policy of 
 insurance is not a contract against this or that event, but 
 against loss. It engages for nothing more than an indem- 
 nification. If the loss be total, the whole sum insured will 
 be the amount of compensation ; if it be but of a part, a
 
 22 CASKS IN ERROR IN THE 
 
 ALBANY, partial recompense only can be demanded. From an equita- 
 , ' *L^ b^e construction of the instrument, a loss is allowed to be 
 J. B. Church total, when more than half the subject matter of insurance 
 John Bedient ^ as ^ een destroyed, or the voyage totally defeated. This 
 and others. j aas given rise to the doctrine of abandonment, on making 
 of which the property saved is relinquished to the under- 
 writer. If a capture takes place, the uncertainty whether 
 the whole will be actually lost or not, admits of abandon- 
 ing: but when the property is released, this conclusion 
 fails. When therefore it is in the possession of the owner 
 or his agent, the loss incurred is no more than what is paid 
 for its recovery, or in expenses on it. The result is, that 
 while the capture continues, the right of abandonment ex- 
 ists, and if then made, the underwriter must pay the whole 
 amount, and take the chance of the property being after- 
 wards recovered. But if the property be restored previous 
 to abandoning, then the fact of loss has ceased, and the 
 only claim can be for the injury sustained. It is the fact 
 which gives the right of abandonment : if there is no exist- 
 ing fact, there can be no right ; and if no right, no aban- 
 donment. The loss must continue to the time of abandon- 
 ment made. In Goss v. Withers, 2 Burr. 696. Lord Mam- 
 field is made to declare, " there is no book, ancient or mo- 
 dern, which does not say the assured may, on a capture, 
 abandon and claim as for a total loss." But on explaining 
 these very words in Hamilton v. Mendez, 2 Burr. 1212. 
 his lordship says, " the proposition was applied to the sub- 
 ject matter," and in pronouncing the judgment of the court 
 in this last case, he lays down these principles : " The 
 plaintiff, upon a policy, can only recover an indemnity ac- 
 cording to the nature of the case at the time of the action 
 brought, or (at most) at the time of his offer to abandon?* 
 In Mills v. Fletcher, Doug. 219. and Cazalet v. St. Bar be, 1 
 D. & E. 187. these cases are referred to and acknowledge 
 * 23 e d- *Roccus, No. 50. cited in Park, 144. is to the same 
 
 effect. So is 2 Vol. 143. Nay, he thinks payment of the 
 money should be the only criterion. In M'-Masters v* 
 5
 
 STATE OF NEW-YORK. 
 
 
 Shoolbred, and Furneaux v. Bradley, Park, 166. the same ALBANY, 
 
 doctrine is maintained. The right of abandonment cannot i _ r J\_ | _j 
 
 depend on an erroneous opinion. For the belief of a fact J. B. Church 
 
 to exist, when that fact does not exist, can never give a John Bedient 
 
 ., T i r i an( l others. 
 
 right against the truth of the case. It is the final event __ ._ 
 
 which ought to regulate ; and if on that it proves a partial 
 
 loss, the recovery cannot be for a total. On the second 
 
 point, if the abandonment is valid, the money received by 
 
 the assured must belong to the underwriter, and be an ex- 
 
 tinguishment of the defendants' demand to the amount of 
 
 the sum received. For if insurance is a contract of indem- 
 
 nity respecting a particular thing, and the produce of that 
 
 thing be received by the underwriter, the difference be- 
 
 tween the produce received and the value insured, is all 
 
 the injury that can have been sustained. In Pr ingle v. 
 
 Hartley, 3 Atk. 195. it is laid down that the value saved, 
 
 if in the hands of the assured, must be deducted from the 
 
 recovery on the policy ; but if none has come to his hands, 
 
 the jury cannot take any notice of it. It follows therefore 
 
 that what has come to his hands, they must notice. 
 
 Henry and Caines, contra. The effect of the argument 
 on the first point is to prove, that, though an abandonment 
 has been made instantly on the knowledge of a capture, 
 yet if at the time of abandoning there has been a restoration, 
 it does, though unknown, avoid the abandonment, and the 
 assured can recover only for a partial loss. An abandon- 
 ment, in its very nature, contemplates restoration or re- 
 covery. When all is gone, an abandonment is an absurdi- 
 ty,* and therefore in cases of absolute total losses, an ac- 
 tion may be brought for a total loss without abandoning. 
 It is singular that the existence of that, on the supposition 
 of which the whole doctrine of abandonment is founded, 
 should take away the right to abandon. This is to make 
 the cause destroy the effect. Abandonment is the exerci- 
 sed right given to the insured by his policy. It is his exer- 
 cised right, because not obliged to make it. Marsh. 511. 
 
 cambartim? 
 2
 
 3 CASES IN ERROR IN THE 
 
 ALBANY, 513. On the happening of the accident insured against, he 
 
 \^**^-^i is entitled to exercise this right. The contract of the un= 
 
 J.B. Church dervvriter is to indemnify against certain perils and losses, 
 
 John Bedient f which capture is one. The nature and effect of capture, 
 
 _ is to induce a prima facie *total loss, and enable the assu- 
 
 24 red to recover for such. Marsh. 483. Goss v. Withers, 2 
 
 Burr. 696. This arises, not only from the words of the 
 contract, but the reason of the thing ; for, on a capture, 
 all the dominion and power of the assured over the object 
 of his insurance is gone. The spes recupe.randi does not 
 suspend the right to demand for a total loss, and complete 
 justice is done by putting the underwriter in the place of 
 his insured. Per Lord Mansfield, 2 Burr. 697. That a 
 restoration, prior to an abandonment, takes away the right 
 to abandon, proceeds on the idea of restoration constituting 
 a part of the contract. This is not so. The contract is 
 against the happening of certain events. On the taking 
 place of any one of these, the contract is broken, and on 
 the breach arises the right of the assured. To argue that 
 a fact not mentioned shall heal this breach, is to say that a 
 contract, broken on an event contracted against, shall be 
 restored by an event not contracted for ; that what is ex- 
 pressed, shall be controlled and annulled by what is not ex- 
 pressed, and this in subversion of the maxim of de non ap- 
 parentibus, et de non existentibus eadem est ratio. Capture 
 gives the right to abandon ; all that is required is, that it 
 be asserted by the assured speedily, and so soon as he re- 
 ceives the information of his loss. Mitchell v. Edie, 1 D. 
 & . 608. Marsh. 510, 511, 512. Alwoodv. Henkle, ibid, 
 513. When thus asserted, it has relation to the period 
 when the accident happened. Marsh. 519. Without this 
 construction, the right of abandonment would be perfectly 
 illusory. Suppose a capture in the East Indies, and the 
 vessel carried into Calcutta. Six months may elapse before 
 information of the event is received. Must another six 
 months pass over before the assured can be certain of his 
 right ? It is the capture, or casus, which gives it him.
 
 STATE OF NEW-YORK. 24 
 
 Election and notice are assertions of that right, which ren- ALBANY, 
 
 1 80 1 . 
 
 der it vested in him, and absolutely change the property to v^-^^^ 
 the assurer, whose agent the assured from that instant be- J-B. Church 
 comes. The effect of election, as to the vesting of rights, Jo ^ do " nt 
 is not confined to cases of insurance ; it is to be traced in ____ 
 every part of our law. If a contract be dependent on an 
 agreement, and the party for whom intended disagree, it 
 can never after be affirmed. Whelpdatfs case, 5 /?<?/>. 119. 
 For where a right is vested, nothing but the act of the par- 
 ty can devest it. If A. is in execution at the suit of B. and 
 /. S. desires B. to let A. go at large, and he will satisfy the 
 debt, to which B. *agrees ; though /. S. before any thing 
 done in pursuance of this promise and agreement, comes to 
 B. and tells him, that he revokes his promise, and that he 
 will not stand to it ; yet such revocation cannot be pleaded 
 in bar to the action. 1 Roll. Air. 32. The reasoning is, 
 that, by the election to accept the offer of /. S. a complete 
 right vested in B. on the contract of /. S. So here, the, 
 contract of the insurer is for a certain sum, to pay on a cer- 
 tain event, if the insured elect to demand. On this elec- 
 tion made, every ingredient for a perfect vested right oc- 
 curred. There was the consideration, in the premium j 
 the promise, in the contract ; the breach, on the accident j 
 the right, on the election duly noticed. On the sacredntss 
 of vested rights, those of property in a great measure de- 
 pend. A contingent remainder may be destroyed whilst 
 contingent ; but the instant it vests, the act of the party is 
 necessary to affect it. After breach of the condition of a 
 bond, the tender of principal and interest, and refusal by 
 the obligee, cannot, by the common law, be pleaded in bar 
 to the action. Under hill v. Mathnvs, Bull. N. P. 171. 
 Because the breach vested the right. The only restriction 
 of the right to abandon is, " that when information of the 
 loss reaches the assured, they, must make their election, 
 whether they will abandon or not." Per Buller, J- in 
 Mitchell v. Edit:. Hamilton v. Mcndes proves only that; 
 the assured cannot abandon, when the information of cap-
 
 25 CASES IN ERROR IN THE 
 
 ALBANY, ture is accompanied with information of restitution and 
 
 t^^^-n^j safety. The case was nothing more than an equitable ex- 
 
 J. B. Church- position of the contract of insurance, made in the same 
 
 John Bcdient spirit as that which influenced our legislature in the act for 
 
 '"" thef amendment of the law. For, as this was passed to 
 
 t i Rev. Laws, soften the rigour of the common law on a breach of the 
 m ....... 
 
 condition in a bond, so the judgment in that, was to tem- 
 per the strictness of legal construction on policies of in- 
 surance, in cases exactly similar, and is no further applica- 
 ble. It is a mitigation of strict insurance law ; it qualifies 
 the right by the knowledge of the fact of restitution. If the 
 insured, at the time of abandoning, is ignorant of any fact 
 that can restrain or qualify his election, it must be con- 
 sidered as made in pursuance of the right arising from the 
 capture. To test the right to abandon, by the facts in the 
 knowledge of the assured when the abandonment is made, 
 is the best rule. First, from the nature of the right. It is 
 to transfer the property to the insurer for its value, that he, 
 * 26 as the insured *has lost his dominion over it, might pursue 
 
 his own course for its recovery, and not be liable to be 
 called on for average losses incurred by the conduct of an- 
 other. Secondly, from its end. It is to encourage com- 
 merce ; to enable the party, without any encumbrance from 
 the difficulty of recovery, to be, at the end of thirty days 
 after proof of loss, in possession of his funds, and employ 
 them in other mercantile adventures. Thirdly, this end is 
 defeated, if any hope be left in the insurer to convert, by 
 delaying to acquiesce, the total into a partial loss. If the 
 facts known at the time of abandonment, are not made the 
 criterion of the right to abandon, advantages are given to 
 the insurer over the insured. The latter is bound to make 
 his election immediately ; the former, after delay, and 
 finding the state of the market, would acquiesce or not, ac- 
 cording as prudence and interest might dictate. The opi- 
 nion of Valin, in his 2d vol. pages 143, 144. has been cited as 
 to the effect of subsequent events, on a prior abandonment; 
 -but in the notes to a former page in the same volume, he
 
 STATE OF NEW-YORK. 2 
 
 himself cites a French decision, to the contrary of what he.. ALBANY, 
 lays down. Emerigon, a weightier and more recent an- ^^-^ 
 thority, in his 2d vol. c. 17. s. 6. answers the points insisted j. B . Church 
 on by Valin, and is clearly against them. Where a person John ^Ken* 
 has been legally authorized to act, what he does in virtue J^_^l 
 of that authority, though after it has determined, cannot, 
 \fbonafde, and without knowledge of the determination, 
 be on that account impeached. A conveyance under a let- 
 ter of attorney revoked, is good, if without notice of revo- 
 cation. To permit, in the present case, the subsequent 
 fact of restitution to invalidate the abandonment, will be to 
 affect with notice when a want of knowledge is confessed. 
 The state of things at the time of suit brought, has been 
 mentioned by Lord Mannfeld, as showing it must influence, 
 from analogy to the cases of actions for waste, and against 
 sureties. In the first instance relied on, the repairing be- 
 fore suit brought, is a bar, because there must be a view to 
 mdge of the waste, which, by the reparation, is rendered 
 impossible. 5 Rep. 119. Whelpdalt's case. But even then 
 it must be specially pleaded. 1 //irt. 282. With regard to 
 suits against sureties, the casusfvdcri* is indemmty alone. 
 But this very point relied on in the argument of this day, by 
 the opposite counsel, was urged and decided in the case of 
 Storey v. Brown, cited in 5 Bro. Parl. Ca. 139. in noti*. I he 
 vessel was insured to Gibraltar, for *which place she was * 
 
 chartered. She arrived there, was captured, proceeded 
 against, and restored to the captain, who went on another 
 voyage in her. In an action against the underwnter, h 
 relied on there having been no total loss, and the restora- 
 tion to the captain as the agent of the insured, and by him 
 sent on another voyage. But it was answered that the cap- 
 ture at Gibraltar was a breach of the policy, and the plain- 
 tiff had judgment for a total loss. After capture, the mas- 
 ter is the agent of the underwnter ; a restoration to him is 
 therefore a delivery to the underwriter, and this can never 
 defeat a right of the underwritten. The same point was 
 determined in the supreme cqurt of this.state/ in the case
 
 27 CASES IN ERROR IN THE 
 
 AL !lo4 ffYf f Murray v. United Insurance Company; and in 6'/ocw &? 
 
 V^^-yl^^/ Burling against the same, it was thought so clear, that the 
 
 ' v m counsel for the defendant did not attempt to argue it. In 
 
 J and odS* nt tllis Iast case ' the vessel was in P ort wnen the action was 
 
 v brought. On the second point, we do not deny that the 
 
 amount of the proceeds of ihe vessel belongs to the plaintiff, 
 nor that the defendants are trustees for him ; but, under a 
 plea of the general issue, he can have no advantage of it. 
 Under that, nothing can be received in evidence but pay- 
 ment, Bull. N. P. 152, 153. unless notice of set-off had been 
 given under the statute. 
 
 Hanson, in reply. The engagement of the contract of 
 insurance is not to pay the full amount of the policy on the 
 happening of any one of the events contracted against. It 
 is to indemnify for the damage of that occurrence. Were 
 it otherwise, there could be no partial losses. It is not 
 therefore correct to say, whenever an accident happens, 
 there is a vested right to claim for a total loss ; for the ques- 
 tion instantly arises, what is the extent of the injury in con- 
 sequence of the accident ? Most certainly, when there is a 
 calamity which creates a total loss, there is a breach which 
 gives that vested right insisted on. But the question on 
 every accident is, is it an average or total loss? and this is 
 always a subject of legal consideration. Whatever does 
 not go to the total destruction of the voyage, is an average 
 loss. Marsh. 506. Thus, temporary detentions and re- 
 pairs are average losses, and on payment of the expenses 
 incurred, the contract is complied with. Detention, and 
 capture, as a species of detention, may be total losses, but 
 then they are only technically so, and when they no longer 
 continue, cannot be so considered by the insured. He can- 
 *8 bot, when this artificial loss is done *away, act upon it as 
 
 a total loss which abides for ever, and abandon by force of 
 the casus, when the casus is passed. The right of aban- 
 donment, in cases of technical loss, must depend on the fact 
 ef its existing when the abandonment is made. This
 
 STATE OF NEW-YORK. 2S 
 
 trine cannot be inconvenient in its application ; if any con- ALBANY, 
 siderable delay take place by the capture, it will always fur- 
 nish time to abandon whilst it lasts. On the contrary, if 
 every little interruption is to enable the assured to turn the 
 
 loss on the underwriter, it will open a wide door to fraudu- 
 
 lent practice. The cases in Great Britain, and even in the 
 supreme court, are not authority here ; for, it is against 
 that very authority we now apply. This is the highest 
 branch of our judicature, and, as the point has never before 
 been here agitated, it is open for determination. In ma- 
 king it, the English books furnish but few decisions ; for the 
 first case on the subject of abandonment, is that of Gess v. 
 Withers, in 1757. It however confirms our positions, and 
 expressly lays down, that " no capture by the enemy can 
 be so total a loss as to leave no possibility of recovery." 
 The authorities adduced by the associate counsel who 
 opened this case, all show the loss must continue to the 
 time of abandoning, and perhaps to that of action. The 
 case from Brown's Parl. Rep. was on a wager policy,* and * it does not ap^ 
 
 pear so from the 
 
 in them, as there is no interest, there cannot be any aban- case> un i ess , ]ie 
 donment. The mere accident, therefore, on a wager ^ e %amlS3 
 policy, gives that vested right which has been so strongly f>".^ policy* 
 insisted on. Pringle v. Hartley, is decisive on the second << y 1 '^ 1 '. "<-'- 
 
 tlier in Park nor 
 
 point* Marshall, do I 
 
 find an authori- 
 
 The case of Hallettv. Peyton, standing next in order, and 
 embracing the same point as to abandonment, the court de- 
 clined pronouncing judgment till that should be argued. 
 
 Richard S. Hallett against Henry Peyton. 
 THIS case also came before the court on a bill of ex- 9. P. asthepi-e- 
 
 _-,, , , c ceding ease. 
 
 ceptions. The points relied on were, 1st. 1 hat the seal ot
 
 CASES IN ERROR IN THE 
 
 ALT? ANY, 
 
 1 804. 
 
 * 29 
 
 a foreign vice-admiralty court was not in itself any .evi- 
 dence ; but, to make it so, required testimony, on oath, 
 authenticating both the seal and the signature of the judge. 
 2d. That, of the certificate of registry, parol testimony- 
 could not be received, it being, under the act of congress, 
 a record. The third was as to abandonment, *~and the 
 same as in Church v. Bedient^ the next immediately prece- 
 ding case. 
 
 Pendleton, for the plaintiff. It is unnecessary to argue 
 one of the exceptions, because the judge against whose opi- 
 nion the bill was sealed, has acknowledged that he erred ia 
 admitting parol proof of the existence of the register. The 
 second is of the utmost importance. Upon this we con- 
 tend that the papers adduced could not be legal evidence, 
 unless accompanied by proof which would authenticate the 
 seal of the court, and hand of the judge, or show that the 
 condemnation was a true copy of the original sentence. It 
 may not, perhaps, be requisite to establish by witnesses, the 
 contents of papers under the seal of a foreign court, and 
 under the hand of the judge who presided in it, as to the 
 facts which took place in such court ; because it may be pre- 
 sumed that no judge would put his signature to an untruth. 
 But whether it be his signature and the seal of his court, 
 must be authenticated by testimony. The reason why seals 
 of any courts are evidence, is because our own judges are 
 presumed to be acquainted with them. This presumption 
 is not extended to foreign tribunals, nor to their laws, which 
 Xoelitiiiick v. must be proved.* To allow foreign seals to prove them- 
 
 , ,, -iriirir ' T> 
 
 selves, would open a wide field to fraud. In a case in J&- 
 - plnasse^ want of seaworthiness was not allowed to be proved 
 narcl } '2Esj>.jQQ. ^ a CO p V o f a surve y. Xhe act of congress, regulating 
 
 the manner of authenticating records of judgments in sister 
 states, is a high legislative authority, to show a seal of a fo- 
 reign court cannot be received in evidence, without proof of 
 its being actually the seal of such court. Were it otherwise, 
 the act would have been needless. If this is the case in 
 
 Srhneider. 3 
 
 s. 58.
 
 STATE OF NEW-YORK. 28 
 
 retrml to seals of the courts of the different states, it cer- ALBANY, 
 
 b ' i cc j 18U *- 
 
 tainly will a fortiori be so in regard to seals ot foreign ad- 
 miralty tribunals. Even in Great Britain, the seals of their 
 
 inferior municipal courts must be proved, for they are 
 
 not in themselves any evidence. Gilbert's Lazv ofEvid. by 
 Loft, 22. shows that seals of inferior courts must be proved 
 by the oath of some persons to whom they are known. In 
 Olive v. Gwin, Hard. 118. the seal of the grand sessions in 
 Wales was held no evidence, though the grand sessions is a 
 court established by act of parliament. So in Green v. Pronde, 
 I Mod. 117. an exemplification of a recovery in ancient de- 
 mesne, was held inadmissible without proof. An exempli- 
 fication under the public seal of a foreign city was reject- 
 ed, *when offered to establish the entry of goods at the 
 custom-house. The King v. Mason, 8 Mod. 73. Nay, in 
 Henry v. Adey, 3 East, 221. it was held, that proving the 
 hand- writing of the judge was not sufficient in an action on 
 a judgment rendered in Grenada, but that the seal ought also 
 to be established. If this strictness will be required in 
 England respecting the seal of a court in one of her own 
 colonies, we ought to be still more strict here. In Bernar- 
 di v. MotteuxJ the court refused to allow the proceedings t Dot <3- *& 
 of a foreign admiralty court to be read, unless by consent. 
 The reason is evident ; they were not authenticated. We 
 do not say the papers adduced shall in no case be evidence ; 
 we only insist they must be substantiated, on oath, as copies 
 of other writings are, when the originals cannot be pro- 
 duced, and if produced would be evidence. The true cri- 
 terion as to seals of courts is, that where the law presumes 
 them known to the judges, they preve themselves ; where 
 not, they must be proved. The point of abandonment has 
 already been argued in the preceding cause ; if on that we, 
 are correct, the judgment in this case must be reversed, 
 however the court may think on the other exceptions. 
 
 Caines, contra. As the questions now made, come before 
 the court on a bill of exceptions, it may not be amiss to ad--
 
 30 CASES IN ERROR IN THE 
 
 ALBANY, vert to the nature of this mode of proceeding. Injury tri- 
 
 v _i y -i / als, when a party denies a fact, he controverts it by evidence 
 
 R. S.Haiiett w hich goes to the jury. When he admits a fact to exist, 
 H. Peyton, but says it is not substantiated in the manner required by 
 law to prove the issue, he excepts to the evidence, by insist- 
 ing it cannot at that time, or in that way, be offered to the 
 jury in support of the fact in issue. When a fact is admitted, 
 and also that it is duly substantiated, and a party contends 
 that though the fact is true, and well proved, the inferences 
 from it do not in point of law maintain the issue, he de- 
 murs to the evidence. From hence it appears, that on a 
 bill of exceptions, the person tendering it supposes the evi- 
 dence true, but questions the competence or propriety of it. 
 Money v. Leach, 3 Burr. 1765. Therefore the facts it con- 
 
 * This may per- tains can never afterwards be disputed.* Show. Par I. Ca. 
 haps be, because j 2Q Bridffman and others v. Rowland Holt and others. It 
 
 it is an acknow- 
 ledgment on re- follows also, (though the remark is not required by the pre- 
 sent case,) that on a demurrer to evidence, the court may 
 make any and every inference which a jury might have 
 drawn. Cocksedge v. fans/law^ Doug. 131. 134. Here 
 
 * 31 then the capture, *the condemnation, and the seal, are con- 
 
 fessed, but the reception, of them in evidence is denied, for 
 want of being duly authenticated. The question then 
 arises, whether a seal, purporting to be a seal of a foreign 
 court of admiralty, shall be prima facie evidence without pa- 
 rol testimony of the seal and the signature of the judge ? As 
 conclusive, it was not offered. As prima facie, it was open 
 to be rebutted : it is only in case this is not done, that it 
 becomes of any avail. But its reception is argued against, 
 from the danger of fraud to which it would expose, as seals 
 and signatures might be counterfeited for every occasion. 
 It may be answered that the difficulty of manufacturing 
 seals, papers, and proceedings, with all the formula of judi- 
 cial niceties, would be insurmountable ; and if they eouldbe 
 overcome, the circumstance of an oath, in this age of depra- 
 vity, would be no obstacle to their authentication. The 
 danger then of fraud, is not one atom diminished by the
 
 STATE OF NEW-YORK. 
 
 precaution Intended. The keystone of this reasoning is laid 
 upon the idea of fraud ; a supposition that the law never 
 allows to be made. So little is it countenanced by any au- 
 thority, that it is laid down in 2 Bac. Abr. (new edit.) 600. 
 a seal is better evidence than an oath. The rule, however, 
 with respect to other foreign judgments, has been relied on, 
 and a train of authorities, which it is not meant to dispute, 
 have been cited, to show not only the seal of the court where 
 pronounced, but the hand of the judge who presided, must 
 be substantiated. One word will suffice for all these. They 
 were, excepting the case from Espjnasse, which was a nota- 
 rial copy of a ship-carpenter's survey, cases of judgments in 
 municipal and local tribunals, proceeding according to a par- 
 ticular code of partial and confined jurisdiction. The courts 
 of law are therefore not supposed to be conusant of the 
 seals oifora, acting under a system which they do not ac- 
 knowledge. This is not the case here. Courts of admi- 
 ralty are held in all countries under one and the same law, 
 the law of nations, equally ia force in all. The reason on 
 which a judge of the supreme court is supposed to know the 
 seal of a court of common pleas, is, that each is a court of 
 the same jurisprudence ; acting under the same system, on 
 the same principles, and its jurisdiction running in the same 
 eountry. Wherever the jurisdiction is acknowledged, the 
 seal of the court is supposed to be known. If then it can 
 be shown, that what takes place in a foreign court of admi- 
 ralty, is recognised and *available of here, by process under 
 the seal of such court, it follows that such seal must sub- 
 stantiate itself. In 1 Roll. Abr. 530. pi. 12. this is said to be 
 the law : " If a Frizlander sue an Englishman in Frizland 
 before the governor there, and recover against him a cer- 
 tain sum of money, which the Englishman, not having 
 enough to satisfy, comes into England, upon which the go- 
 vernor sends his letters missive" (which are always under 
 seal} '* into England, asking ,J1 the magistrates within the 
 kingdom to cause execution of the s;d judgment ; the judge 
 of the admiralty may execute that judgment by imprison- 
 
 K 
 
 ALBANY, 
 
 1804. 
 
 R. S. Hallett 
 H. Pevton. 
 
 * 52
 
 32 CASES IN ERROR IN THE 
 
 ALBANY, ment of the party, and he shall not be liberated by the com- 
 v.^.-L/ nion law. For it is according to the law of nations that the 
 11. S. Hallett justice of one nation shall be aiding to the justice of the 
 H. Peyton. other, and the one execute the judgment of the other: and 
 the law of England takes notice of this law, and the judge 
 of the admiralty is the proper magistrate for that purpose, 
 for he only has execution of the civil law within this realm. 
 Wier's case resolved upon a habeas corpus, and he remand- 
 ed." It is evident that in this case, the authority of the im- 
 prisonment, which was founded on the letters missive, must 
 have been before the court. No mention is made of the 
 manner in which they were substantiated. So in Jurado v. 
 r S. C. 1 Vent. Gregory , 1 Sid. 41 8. f "Where sentence is obtained in a 
 foreign admiralty, one may libel for execution thereof here, 
 because all the courts of admiralty in Europe are governed 
 by the civil law, and are to be assistant one to the other, 
 though the matter were not originally determinable in our 
 court of admiralty." This case shows how fully admiralty 
 jurisdiction extends over all civilized countries. It marks 
 too the distinction between judgments in those courts, and 
 judgments in foreign municipal tribunals. In the admiralty, 
 a libel maybe filed for execution here, of a judgment abroad, 
 in the same manner as an action may be maintained on a 
 judgment in the supreme court, to obtain the benefits of it 
 without examining into the merits on which it was ren- 
 dered. As, then, the jurisdiction of the law of nations is ac- 
 knowledged here, the courts of admiralty act under that ju- 
 risdiction. The seals of these courts must be supposed to 
 be known here, like the seals of all other courts proceeding 
 under the same authority. But it is not merely the seals 
 of courts under the law of nations that are received as 
 evidence ; the seals of the officers of that law we equally 
 * 33 *good testimony. The seal of a foreign notary public is evi- 
 
 dence. Wherever the jurisdiction of a court runs, its seal 
 requires no evidence to prove it. Judgments in the courts 
 of the United States, are therefore evidence when under the 
 seal of the court where pronounced, without proving the seal
 
 STATE OF NEW-YORK. 
 
 or signature of the judge. In Jenkins v. Silas Pepoon, 
 debt was brought on a judgment rendered by the district 
 court of the United States, for the district of Massachusetts. 
 On a plea of nul ltd record, the plaintiff's counsel offered 
 an exemplification of the judgment under the seal of that 
 court. It was objected on the part of the defendant, that 
 the act of congress respected only judgments of state courts ; 
 that it did not provide for the admission of judgments in 
 the courts of the United States; that therefore proof should 
 be made of the seal, or of the matters exemplified. The 
 court, however, admitted the record unanimously, on the 
 principle that it was a court of general jurisdiction, its seal 
 therefore to be noticed by all courts, as carrying in itself evi- 
 dence of its own genuineness. Against the reasonings on 
 behalf of the plaintiff, the argument from inconvenience 
 alone would be irresistible. Suppose a capture, and the 
 vessel condemned in Bombay ; after the proceedings have 
 beeen transmitted here, must they be sent back under a com- 
 mission to be identified ? The delays, risks of miscarriage, 
 and expense, would be intolerable. Another reason may 
 be assigned why, in the present case, the seal need not have 
 been proved. It was a collateral fact immaterial to the 
 point in litigation. The record of the sentence (if it may 
 be so termed) was not in issue. Therefore a seal to it was 
 not requisite to make it testimony. " There is a difference 
 between pleading a record, and giving it in evidence. If 
 pleaded, and the issue mil tid record, it must be stib pe.de. 
 sitrilli, or the judges cannot judge thereof; but, where it is 
 given in evidence on a collateral fact, if it be not under seal, 
 the jury may find the same, if they have other good matter oj 
 inducement to prove it." White v. Pynder, Styles, 22. The 
 same authority may be used against the second point, that a 
 register of a vessel is, by act of congress, a record, and does 
 not admit of faro I proof; for the register was not in issue. 
 It was not the matter in contest. The interest was the 
 only subject of litigation. The exception cannot mean that 
 a register is a judicial record, because it must then be 
 
 ALBANY, 
 
 1804. 
 
 K. si. H allett 
 
 v. 
 H. Pevton.
 
 33 CASES IN ERROR IN THE 
 
 ALBANY, an absolute verity ,f #never to be contradicted ; not even ad- 
 
 1 804. r < i j .. ' t _j 
 
 v^_ i nnttwg oi proor that it once was wrong. J If a ship s re- 
 
 R. s. Haliett gister be not a record in the strict technical sense of the 
 
 H. Peyton. word, it is noi proof of the facts it contains. It can amount 
 
 """ to nothing more than prima fade evidence. That which 
 
 t Co. Lift. 117. 
 
 b. we adduced was equally prim a facie testimony, between 
 
 two equals there can be no difference. Then why prefer 
 
 * Dickson v. l . ... 
 
 Fisher, \niack. the register? The same weight of evidence is in one case 
 as the other. To establish that the register of a vessel can- 
 not he a legal record, and therefore that proof allunck of it, 
 and its contents, may be resorted to, the very act itself, un- 
 der and by which it was created, is an authority. Naviga- 
 <T Ct ' tm g contrar y to tne ownership expressed in the register, is t 
 by the provisions of the statute, a forfeiture of the vessel. 
 On an information for such a breach of the revenue law, the 
 facts contained in the register are the very subject of dis- 
 pute. An instrument then, the facts in which are contro- 
 verted by other facts, and go to a jury trial, can never be a 
 legal record. When the question is as to the qualification of 
 the vessel, as to what privileges and immunities she may de- 
 mand, then the register may be the only evidence allowa- 
 ble : but to determine to whom the vessel belongs, it is on- 
 ly, epluribus unum. The effect of a register may be illus- 
 trated by the following case : Suppose an act passed, au- 
 thorizing commissioners to grant to persons swearing them- 
 selves entitled to lands, certificates, on production of which 
 they should have a right to vote at elections ; this certi- 
 ficate would be conclusive evidence of their right of suffrage, 
 but would never establish their title to the lands. A 
 doubt may be entertained how far the register is evidence at 
 all. It is obtained on the oath of the party himself. It is 
 contrary to legal principles to allow a party to testify in his 
 o\vn cause ; this, however, is done in the fullest degree, with- 
 out even the chance of cross-examination, if the register 
 granted on his oath, is evidence of the facts he has sworn to. 
 But allowing the register to be evidence, as the original is 
 at the custom-house where granted, a copy only could have
 
 STATE OF NEW-YORK. 3** 
 
 been produced. This copy would not have proved any ALBANY, 
 
 1 J4O4, 
 
 thing of itself; it must have been corroborated by the affi- x^^^^/ 
 davit of some one who had compared it with the original, R- S. Haiiett 
 and would have taken all its effect from the oath. In the H. Peyton, 
 present case, the same sanction is afforded, for the witness 
 swears to seeing the original in the name of the plaintiff be- 
 low. The very fact, *then, which the copy \v ould have esta- 
 blished, has been substantiated by oath. But where a deed 
 is lost, a simple copy without witnesses, and unsupported 
 by affidavit, will be allowed in evidence.! 1 Lev. 25. A JT 1 ^ ^ 
 fortiori in such a case it may be proved by witnesses, that an oi<i <ieen, and 
 
 vfts fouiKl a- 
 
 there was an original which they saw. Under our register m(l! , s the muni- 
 act, however, it is to be observed, that the register is not a J ute u 9 
 proof of property. The register may be in the name of one ^"^^J 
 man, and the legal right of ownership in another. With us, ; ^^ 
 the only consequence of a false recital of the owner's name, out witnesses. 
 as it regards the property, is, that the vessel is not entitled 
 to the privileges J of an American vessel. But under the ^ l '' ; ' r Ac! > 
 British statute, a false recital renders the transfer null and 
 void, so that no property passes. Rolleston v. Hibbert, jja^Gw.^iil. <-. 
 3 D. & E. 407. Camdeii v. Anderson, 5 D. fc? E. 709. 
 Westerdale v. Dale, 7 D. & E. 306. Moss v. Charnock, 2 
 East, 349. It was on the principle stated in the distinction 
 taken, that the decisions in the cases cited entirely rested, 
 no one of which was on a policy of insurance. In actions 
 on these it is not necessary to prove a strict legal title. An 
 equitable, nay, a possible interest is sufficient. This ap- gJ 
 peared from the sentence acquitting the vessel as neutral, u Pull. 75. 
 and from the proof of the citizenship of the now defendant. 
 It is not said the proof was conclusive. It \vzsprimd facie, 
 enough to go to a jury, and if not rebutted, then it became 
 conclusive. The object of the act was not to confer on re- 
 gisters the character of legal records ; it was to use them as 
 mere memoranda, for the purpose of informing the cus- 
 tom-houses what tonnage duty ought to be paid. 1 his is 
 further evinced by the act specifying what vessels shall sail 
 under records, and what under registers. Und'-r the for-
 
 35 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 1804. 
 
 R. S. Hallett 
 
 v. 
 H. Peyton. 
 
 * 36 
 
 mer, are to navigate all those built in the United States, but 
 owned wholly or partly by foreigners ; under the latter, all 
 so built owned entirely by American citizens. The first pay 
 thirty cents per ton, the other six. The word record, 
 - when used therefore in our laws, signifies no more than an 
 office memorandum. It is exactly synonymous. In our 
 state law respecting mortgages, it is said to be unnecessary 
 " to record or register at full length the certificate." 1 Rev. 
 Laws, 48O. sec. 4. So in the register act itself, sec. 9. the 
 collector is ordered to " make and keep in some proper book 
 a record or registry thereof." The same in sec. 26, 27. 
 So in the act to regulate the collection of duties *on imports 
 and tonnage, sec. 21. collectors, naval-officers, and surveyoi-s, 
 are directed to keep " true accounts and records" of all 
 their transactions. 4 Laws Unit. Sta. 315. Being coupled 
 with the word accounts, shows the meaning of the term, 
 npscitur a socio. If the appellation of a record is, whenever 
 applied to any writing in a statute, to give it the force and 
 efficacy of a legal record, what a host of judicial records of 
 absolute verity shall we have ! Every permit, every custom- 
 house paper, would be a record. For records must be so 
 either in the legal, or the vernacular acceptation of the word. 
 There is no third or hermaphroditical Sort, partaking of the 
 natures of both. Whenever a record is ordered by an act 
 to be made of any transaction, if it is to have any peculiar 
 weight as evidence, that weight is always declared. Thus, 
 in our state law, relating to the proof of wills in the court 
 of common pleas : " and the record of the said will so 
 proved and recorded, shall be as good and effectual in all 
 cases, as the original wills would be if produced and proved." 
 1 Rev. Larvs, 179. sec. 6. So ibid. 317. sec. 7. relative to 
 the records by surrogates : " which records shall be of the 
 same force as the like records in the office of the judge of 
 the court of probates of this state." So the certificates 
 given to paupers by their towns, when filed and recorded by 
 the town clerk where they come to reside : " every such 
 certificate, so acknowledged or proved, and allowed as
 
 STATE OF NEW- YORK. 36 
 
 aforesaid, shall be deemed in all courts whatsoever within ALBANY, 
 this state as duly proved, and shall be taken as evidence v. ^^ ' j 
 without any other proof thereof." 1 Rev. Laws, 570. sec. R. s. Haiiett 
 12. The laws of the union are in exact coincidence on this H . Peyton, 
 point with our own. By the act imposing a direct tax, 4 - 
 Laws Unit. Sta. 174. sec. 6. the absence of commissioners 
 from meetings is to be recorded and noted in a book, to- 
 gether with their excuses for not attending* the transcripts 
 from the records of which are " declared to be conclu- 
 sive and legal evidence." By the 25th section of the same 
 statute, page 187. the alienations of lands assessed, are to 
 be recorded. Does this shut out all proof of title by any 
 thing less than matter of record ? The truth is, that acts 
 prescribing registers and records, do not abrogate proof 
 by any other mode. Therefore, though the 26th Geo. II. 
 c. 33. sec. 13. ordains that a registry shall be kept of mar- 
 riages, it does not exclude the presumptive evidence ari- 
 sing from cohabitation. 4 Bac. Abr. (new edit.) 537. In 
 *the next place, when transactions in foreign states are to 
 be established, there is some relaxation in the rule as to ad- 
 ducing the best evidence the circumstances could afford. 
 In Wallls v. Delancey, cited in Barnes v. Tramporusky, 7 
 D. &? E. 266. en a bond, the hand-writing of one witness 
 only was proved. With regard to the other, there was no 
 evidence that he was either dead or abroad. The defend- 
 ant contended it was not the best evidence the case would 
 furnish. Lord Kenycn. "This is a foreign transaction. 
 The proof might be more perfect, yet it was sufficient and 
 reasonable evidence for a jury, at least, unless rebutted by 
 some evidence on the other side. The expense in sending 
 a commission would, in many instances, be more than the 
 value of the sum in dispute." There is not a word in this 
 decision which does not apply to the present case. On the 
 score of inconvenience argued against the first exception, it 
 is conclusive. On the point of presumptive and prime 
 facie evidence, it is parallel ; for the individual states, with 
 respect to each other, are foreign countries, under distinct
 
 r CASES IN ERROR IN THE 
 
 ALBANY, and independent sovereignties. The exceptions appear to 
 V.^. -,_* urge, as erroneous, the admission of parts of the proceedings 
 R. S.Huliett in the admiralty under the seal of that court. It has not 
 
 y^ 
 
 H. Peyton. been insisted on in argument, but it may not be improper 
 ~ to observe, that so much only of a record as concerns the 
 matter in question need be given in evidence. To prove 
 the filing of a declaration, it surely is not necessary to show 
 the writ. The, whole end of the exceptions before the 
 court, is to gain a new trial. On this subject, if the same 
 considerations can be here entertained, it is laid down, that 
 they are not granted on nice and formal objections, which 
 do not go to the real merits. 3 Black. Comm. c. 24. So if 
 the verdict of the jury be agreeable to equity and justice, 
 the court will not grant a new trial, though there may 
 have been an error in the admission of evidence, or in 
 the direction of the judge. Wilkinson v. Payne, 4 D. & E, 
 468. The conduct of the plaintiff in error determines the 
 justice of the case. He does not deny ; nay, by the course 
 he has taken, he confesses the facts offered ia testimony. 
 He does not rebut, or offer to do away the presumption 
 arising from them, and therefore we may say, stabit prc- 
 sumpth donee probetur in contrarium. 
 
 Pendlelon, in reply. The rule of law is, that all evidence 
 ought to be at the trial. What the weight of that evidence 
 38 *might be, cannot be now taken into consideration. The 
 
 only point is, was it properly received ? Therefore, how- 
 ever the facts are admitted, no advantage can arise in this 
 court upon those admissions. Nothing has been said to 
 show the proof of the seal of the vice-admiralty court ought 
 to have been dispensed with. That courts here may be ap- 
 plied to for execution of an admiralty sentence, is not law, 
 and would be ridiculous in any country. The whole train 
 of argument, as to evidence of the register, goes upon the 
 idea of its having been lost ; but as the vessel was restored, 
 the presumption is, her papers were with her, and in the 
 power of the plaintiff, who ought therefore to have produ-
 
 STATE OF NEW-YORK. 38 
 
 ced the one granted by the custom-house at Charleston, or ALBANY, 
 have shown why that could not be had. On any ground, 
 therefore, we presume a new trial must be granted. 
 
 Per Curiam, delivered by LANSING, Ch. The plaintiff 
 in error relies upon two points, for the reversal of the judg- 
 ment rendered in the supreme court in the first of these 
 causes. His counsel have stated them, and insisted, 1st. 
 That the brig John, having been released fourteen days be- 
 fore the abandonment, the mere ignorance of the owners of 
 that circumstance, could not give them the right of aban- 
 doning the brig to the insurers, which it was admitted they 
 could not have done, if they had known the real truth on 
 the subject ; and, 2dly. That the money received by the 
 owners for the brig, ought to have been deducted from the 
 same, as the underwriters were liable to pay, and the as- 
 sured entitled to recover, only for the difference between 
 that sum and the sum insured. These questions, it ap- 
 pears, arose at the trial of the cause at the sittings, and the 
 Judge who presided, decided the suit on the authority of 
 the case of Mumford v. Church, which was very fully and 
 ably argued, while I was in the supreme court, in July 
 term, 1799; and, after much deliberation, the whole court 
 united in opinion, that the abandonment was conclusive. 
 My note-book is not now within my reach. I cannot there- 
 fore resort to it to refresh my memory, but I have a copy 
 of the case which was stated by the parties in that cause, 
 and from that it appears, that the policy was on the brig 
 Betsey, which sailed from Neiv-Tork for Petit-Guave, in the 
 island of Hispaniola, on the 12th May, 1798 ; that she was 
 captured by a British cruiser on the 26th day of the same 
 month of May, and sent into Port Mole St. Nicholas, where 
 she was detained three *weeks, and then restored upon * 39 
 
 paying charges; and that, after a further detention of three 
 weeks, she was permitted to depart, but under a British 
 convoy to Jamaica, from whence she returned to New- 
 Tork. The abandonment was made the 12th June. The 
 
 L
 
 39 CASES IN ERROR IN THE 
 
 ALBANY, restoration had not taken place when the abandonment was 
 v ' . made; for the capture was on the 26th May, the abandon- 
 
 R. * Haiku ment on the 12th June, and three weeks from the former 
 H Ptyton. of those days, during which the litigation with the captors 
 was pending, clearly overreached the period of the aban- 
 donment. The notes which Mr. Justice Kent took on the 
 subject, and which I have examined since the argument of 
 these causes, show, that this was particularly adverted to 
 by the court. If, therefore, the opinion given on that oc- 
 casion was expressed with the latitude intimated, it was, so 
 far as it was beyond what the circumstances of the case re- 
 quired, extrajudicial; and, as such, it would not now be 
 considered as authority in the court which pronounced it. 
 The general reasoning r< sorted to in the decision of cases, 
 is sometimes calculated to mislead ; but whenever it be- 
 comes necessary to examine them as authority, it must be 
 rigidly restrained to the existing case. That the decision 
 in this cause was supposed to be broader than it appears upon 
 examination to have been ; and that it was so received, is 
 evident from the case of Shewn v. Burling, determined in 
 October term, 1799. In this a question arose on a policy 
 insuring a cargo which was captured, liberated, and after- 
 wards abandoned, before notice of the liberation had been 
 received. That case was decided without argument, ex- 
 pressly on the authority of that of Mumford v. Church ; 
 and on the general ground, that an abandonment once 
 made was definitive. So were the present cases at the 
 sittings. I however think that these cases are in no re- 
 spects similar to that of Mumford v. Church ; and that, even 
 in the supreme court, they would still be considered as 
 embracing an open question. In most occasions of mari- 
 time insurances, the remoteness of the owners from the 
 subject insured, effectually precludes from a direct personal 
 agency in its management, on the spot to which it may be 
 conveyed, by any of the incalculable variety of incidents to 
 which this species of adventure is so pre-eminently expo- 
 sed. To obviate some of the inconveniences arising from
 
 STATE OF NEW-YORK. 39 
 
 this circumstance, they are sometimes permitted to act, ALBANY, 
 upon the best ^information they are able to acquire of the v^^-^-^./ 
 actual situation of the subject insured, and to make such -S.Haiiett 
 information the basis of the rights they intend to assert, in 
 consequence of the occurrence of any of those accidents, # 40 
 
 which, in thtir effect, produce either a technical or actual 
 total has. But certainly, if the information is either totally 
 unfounded, or materially variant from the truth, it would 
 be a strange position to maintain, that its resemblance 
 should be preferred to the truth itself. If the insurers and 
 insured had been at the port to which the captors carried 
 the brig, an abandonment, under all the circumstances of 
 this case, could not have been permitted ; for at the time 
 it was made, the vessel was restored, and prosecuting its 
 destined voyage. From the mere act of abandonment, no 
 positive right can be derived to the insured, unless it be 
 combined with a total loss ; for if the loss should, in the 
 final event, prove an average, instead of a total loss, the 
 act of abandonment would be nugatory. In these canes, 
 the loss is not pretended to be deduced from the deteriora- 
 tion of the vessels ; the first policy was underwritten for 
 5,000, the repairs of the vessel amounted to about 8OO, 
 and the full freight from New-Tor k to Cadiz was paid by 
 the captors ; the amount of this loss, calculated from the 
 comparative value of the subject insured, with the amount 
 of the repairs, clearly, on that ground only, would consti- 
 tute an average loss. That this is the doctrine adopted in 3 Burr. 683. 
 Great Britain, and which still obtains there, appears from 
 some of the cases cited. In the case of Go.is v. Withers, it 
 was made a point, whether the assured had or had not a 
 right to abandon, after the ship hud been recaptured and 
 carried into Milfird harbour. The capture was assumed, 
 as prima facie constituting a total loss. The- salvage 
 amounted to hall her value ; the loss of freight, the captivi- 
 ty of the master and mariners, the dissolution of the charter- 
 party, and ih. disability of the vessel to pursue h-r voyage, 
 are reasons given by the court, from which the continuance
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 1804. 
 
 2 Burr. 1198. 
 
 * 41 
 
 of the total loss was to be inferred, and on that ground only, 
 and not because the capture constituted a total loss, was 
 the judgment of the court given. In the case of Hamilton 
 v. Mendes, which arose on a policy on the ship Sdby and 
 her cargo, from Virginia or Maryland to London ; the ship 
 had been captured, recaptured, and carried into Plymouth; 
 where *she arrived on the 6th day of June, \ 760, and was 
 offered to be abandoned, at London, on the 23d of the 
 same month. The ship had sustained no damage from the 
 capture, and the whole cargo was delivered to the freighters, 
 at the port of London, who paid the freight. Lord Mans- 
 jield, in delivering the opinion of the court, observed, that 
 the ship and cargo, in the case of Goss v. Withers, were 
 literally lost. He explains the words quoted from his opi- 
 nion in the latter case : " that there is no book, ancient or 
 modern, which does not say, that in case of the ship being 
 taken, the insured may demand for a total loss, and aban- 
 don," and adds, " but the proposition was applied to the 
 subject matter, and is certainly true, provided the capture 
 or the total loss occasioned thereby, continue to the time of 
 abandoning and bringing the action" He afterwards lays 
 it down, as the point intended to be determined, that the 
 plaintiff' upon a policy, can only recover an indemnity, ac- 
 cording to the nature of his case, at the time of the action 
 brought, or at most, at the time of the offer to abandon, 
 and observes, that the plaintiff's demand is for an indemni- 
 ty. His action, then, must be founded on the nature of 
 his damnification, as it really was, at the time of the action 
 brought. It is repugnant, upon a contract of indemnity, 
 to recover as for a total loss, when the final event has de- 
 termined that the damnification is in truth, an average loss 
 only. This reasoning is adopted, after an elaborate re- 
 search, after solemn argument, and deliberate examination 
 of the theories of foreign jurists, and after a critical review 
 of the opinion given in the case of Goss v. Withers. From 
 these circumstances, as well as from the great talents and 
 ability that so eminently distinguished the tribunal which
 
 STATE OF NEW-YORK. 
 
 41 
 
 decided those cases, they merit particular attention, and 
 are well entitled to be considered as very weighty authority. 
 They would have been respected as such anterior to the 
 revolution, and, in the estimation of our courts, that au- 
 thority has not been weakened by the change of govern- 
 ment. The doctrines deducible from these cases, go the 
 length of determining these; for they fully establish the 
 position, that a capture may, according to circumstances, 
 either produce a total or partial loss ; as, therefore, the 
 actual loss in the first instance, is less than one-sixth of the 
 valuation of the brig in the policy, the abandonment could 
 be founded only on a partial loss, *which of consequence, 
 was incapable of constituting a case to warrant it. The 
 case of Mills v. Fletcher, was decided since the revolution, 
 on the point, that if the owner suffers so much from a cap- 
 ture, that it is not worth his while to pursue the voyage, he 
 may abandon ; and the reasoning in the case of Goss v. 
 Withers, and Hamilton v. Mende*, is again recognised and 
 enforced. I have therefore no doubt, but that these cases 
 ought to be governed by those of Goss v. Withers, and Ha- 
 milton v. Mendes, as well on the ground of authority as the 
 cogency of the reasons given for those decisions. As be- 
 fore the abandonments, the event of discharge of the ves- 
 sels had constituted an average has only, the defendants are 
 not entitled to recover as for a total loss. In forming this 
 opinion, I have not brought into view those of the foreign 
 jurists, cited in argument. In many instances, it is useful 
 to resort to them, to elucidate general principles ; but the 
 occasional infusion of the spirit of local codes into their ge- 
 neral system, renders it sometimes difficult to discriminate 
 accurately the degree of weight which ought to be attached 
 to these opinions, on the principles they treat of. In these 
 cases, I do not think it necessary to enter into an examina- 
 tion of their doctrines, as the court can repose themselves 
 on judicial opinions, derived to us as authority. But if it 
 were necessary, from the slight glance which has been of- 
 fered, I am persuaded they are capable of being reconciled, 
 
 ALBANY, 
 
 1804. 
 
 K. S. Hallett 
 
 v. 
 H. Peyton.
 
 42 CASES IN ERROR IN THE 
 
 and that they would tend to corroborate the general result 
 ^ drawn from the cases adjudged in the Englisk courts. As 
 
 R. . Haiiett to the second point in the case first argued, thinking, as I 
 H. Peyton. do, tnat tne nrst concludes against the defendant in error, 
 if my opinion would prevail, it would not be necessary to 
 decide on this ; I shall however very briefly state my opi- 
 nion on the second point also. If this was the case of a 
 total loss, the defendants in error, by abandoning, com- 
 pletely devested themselves of their interest, and as they 
 afterwards sold the vessel, if the abandonment was valid, 
 they of course disposed of property which the act of aban- 
 donment unequivocally determined, was that of the plain- 
 tiff. This is not the case of mutual dealing, but the sum 
 received is the price of the subject, for the damnification 
 of which a compensation is demanded. It is a charge in- 
 separably connected with that subject, calculated to dimi- 
 nish the amount of the compensation, and the forms of law 
 43 must be exceedingly rigid and ^unbending, to preclude the 
 
 plaintiff, (the defendant in the court below,) from entitling 
 himself to a deduction of the amount of the sale. I there- 
 fore think this, without notice of a set-off, a proper ground 
 for deducting the amount of the sale, after adjusting all 
 reasonable allowances from the sum demanded by the de- 
 fendants in error, and that the evidence to that point ought 
 to have been admitted. I am, therefore, of opinion, on both 
 points, that the judgments in these causes should be re- 
 versed. 
 
 The whole court being unanimous in this opinion, the 
 judgments in both causes were reversed, on the point of 
 abandonment.
 
 STATE OF NEW-YORK. 4,3 
 
 Richard S. Hallett and Walter Bowne against 
 Ebenezer Jcnks and others. 
 
 IN error, on the judgment of the supreme court in Ebe- A vessel driven 
 nezer Jenks and others against Richard S. Hallett find a French port, 
 Walter Borune, reported in 1 CaineSs N. T. Rep. 60. The hc/cargo M ta- 
 case was exactly as it is stated there, and the arguments of |^ 'of t he < go" 
 counsel only a repetition of the points before insisted on in v '-"iment, am! 
 
 she prevented 
 
 the COUrt below. from taking away 
 
 her original la- 
 ding, may, with- 
 , . out incnrringtlie 
 
 LANSING, Ch. On this case three questions have arisen: pena ities of the 
 1. Whether the sloop Nancy violated her neutrality by re- ^ s ^1 
 ceivine: the paper described in the case as a passport, found wlth , tll . e (le ; 
 
 pemlencies ot 
 
 on board at the time of her capture ? 2. -Whether the voy- France, pur- 
 chase and load 
 age was illegal, and in contravention of the laws of the with the produce 
 
 United States ? 3. Whether the concealment of material A passport grait! 
 
 circumstances would avoid the policy? As to the first Sular govern- 
 point, the reasons given for the judgment of the supreme j^",^^ 1 ^ 5 ,' 
 court appear to me satisfactory. There is nothing beyond cruisers, is not a 
 
 . sailing under the 
 
 the mere import of the paper which can aid in giving a con- protection ofihe 
 
 f . flag of that go- 
 
 struction to it. In its form it proiesses to contain simply a vemment, so as 
 request to the officers of the French navy and privateers, to [jo^'^haracter 
 let the vessel fa-is free; and whether it is in the ordinary, onthcvessel - 
 or an uncommon form, does not appear. If it was the 
 ordinary clearance used in the island of Btf panto fa, it could 
 not be considered as a violation of neutrality to carry it in 
 the vessel; and as it is expressly found by the verdict, that 
 the passport was received on board at the Cape, no in- 
 ference to the prejudice of the insured can be drawn from 
 its being antedated, which *might lie the effect of positive * 44 
 
 regulation ; and, as it has not been found by the verdict, 
 that it was intended to confer some uncommon privilege on 
 the vessel, I think, under all circumstances, it must be con- 
 sidered as a mere clearance. As to the second question, 
 the voyage, in its commencement, was a lawful one. It 
 was from one of the ports of the United States to the Ha,-
 
 44 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 1804. 
 
 E. Jcnks and 
 others. 
 
 45 
 
 vanna, a Spanish port ; and the verdict finds that the ves- 
 sel was compelled, by distress, to put into Cape Francois, 
 in the island of ITispaniola. To the time of her arrival at 
 the latter port, nothing had been done to forfeit her neu- 
 trality ; the touching at it was the effect of inevitable neces- 
 ' sity ; the unlading the cargo was in compliance with a simi- 
 lar necessity, for the vessel required to be repaired. The 
 disposition of the cargo was not a voluntary act ; and its 
 conversion into the productions of that island, was so far 
 an act of necessity as to leave only the alternative of aban- 
 doning the interest, or giving it the modification dictated 
 by the government. The policy was made to insure the 
 cargo, thus acquired at Hispaniola, against all risks. The 
 intent of the law of the United States, seems to have been, 
 to restrain their citizens from aiding in the French carrying 
 trade, and by that means to impress the necessity of re- 
 specting our neutral rights. All the restraints imposed by 
 the statute are upon the vessel. The vessel is inhibited 
 from being employed in the traffic or commerce described in 
 it. The finding of the jury has completely severed the 
 vessel and its cargo ; for it is found by the verdict, that, 
 upon the arrival of the vessel at the Cape, the cargo rvas 
 landed, and was not permitted to be reladen. The unlading 
 was the effect of necessity, and though the captain disposed 
 of the cargo, neither its disposition nor the new investment 
 could be considered as the employment of the vessel ; and 
 yet the employment of the vessel was the only point to which 
 the forfeiture could attach. The landing was involuntary, 
 the relading impracticable; and though the vessel was af- 
 terwards resorted to as the vehicle of conveyance, it was to 
 carry the property of citizens of the United States, acquired 
 under circumstances of coercion, and it may literally and 
 truly be said, in the language of the statute, not to have 
 been employed in any traffic or commerce with or for any 
 person resident within the French territory. The statute 
 was limited in its operation to vessels departing from the 
 United States #after the 1st day of July, 1798. After di-
 
 STATE OF NEW-YORK. 
 
 reeling that such vessels should not be permitted to pro- ALBANY, 
 ceed to any port or place of the French republic, and should 
 not be employed in any traffic or commerce -with or for any 
 person resident within or under the jurisdiction of the 
 
 f f LJ J rv 
 
 French republic, it adds, "and if any ship or vessel, m any others, 
 voyage thereafter commencing, and before her return within 
 the United States, shall be voluntarily carried, or suffered to 
 proceed to any French port or place aforesaid, or shall be em- 
 ployed as aforesaid, contrary to the intent of the said act, 
 that then the vessel and cargo shall be forfeited." The 
 law was not intended to embarrass the citizens of the Uni- 
 ted States fairly pursuing the active speculations of trade. 
 It never could have been the intent to devote to indiscrimi- 
 nate destruction, as well the property of those whose mis- 
 fortunes subjected them to an irresistible necessity or lorce, 
 as those who had voluntarily evaded its provisions ; and 
 though a variety of cases may occur in which private rights 
 must unresistingly bend to the safety and preservation of 
 the commonwealth, they are to be found only in the extent, JBac. sr. 
 as applied to great and imminent emergencies; and even in 
 the case of treason, the authorities cited to establish the doc- 
 trine, show, that there may be exceptions to the universality 
 of the rule. Here every fact, calculated to show that the 
 conduct of the master was the effect of an influence he could 
 not resist, is established by the verdict. This brings it 4 Laws U. S. 
 
 129. sec. I. 
 
 within the purview of the first section of the statute, and 
 appears to be contradistinguished from voluntary acts ; for 
 the word voluntary may well be considered as the adjunct 
 to the whole sentence, and not necessarily, in sound con- 
 struction, to be exclusively limited to the words carried or 
 suffered to proceed to any French port or place as aforesaid ; 
 and I think numerous cases must occur, in which a vessel 
 may, with as much propriety, be said to have been invo- 
 luntarily employed in trade, as to have been involuntarily 
 
 carried into port. The law of congress, of 9th February, 4 La-ma U. S. 
 
 . . . 248. sec, 6. 
 
 1799, is sufficiently broad to embrace this case : it pro- 
 vides that if it shall appear, that any ship or vessel, seized
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 1 804. 
 
 R. S. Hallett 
 & W. Bowne 
 
 v. 
 
 E. Jenks and 
 others. 
 
 * 46 
 
 for the contravention of that or<the former statute, was cap- 
 tured or driven by distress ofrveather, or was unavoidably 
 detained or delayed, by some embargo, &c. or other una- 
 voidable casualty, without any fault, wilful negligence, or in- 
 tention to evade the provisions of the said statutes, the se- 
 cretary of the treasury may direct a restoration, of the ves- 
 sel and cargo* If it could be brought within the provision 
 of the last statute, the decision of the secretary might, even 
 after a seizure, have constituted this a legal voyage. The 
 case of Richardson seems to have some analogy to this ; but 
 we are totally unacquainted with the reasons which influ- 
 enced the court in that case, and I think too imperfectly ac- 
 quainted with its merits, to consider it as having any weight 
 here. The concealment of material circumstances is the 
 last point. The cargo of the vessel was insured on a 
 voyage from Hispaniola to St. Thomas. As the insurance 
 was made after the passing of the second act, and from it, 
 circumstances might exist to constitute the voyage from 
 Hispaniola a legal one ; with a full knowledge of this cir- 
 cumstance, the insurers underwrite against all risks. But 
 it has been said, that the time of the departure of the Nancy 
 from the United States does not appear to have been dis- 
 closed to the insurers ; and hence it is inferred, that there 
 was a concealment of a material circumstance. The allega- 
 tion of concealment is in the nature of an avoidance, and must 
 cither be pleaded or averred, and in all events must be 
 proved, or it cannot, in legal operation, avoid a contract, in 
 other respects valid. It is alleging the existence of a fraud 
 and is of itself a substantive and effective defence, capable 
 of destroying the contract. Nothing of this kind appears 
 in the record ; and in pronouncing an opinion in this case, 
 the court are necessarily confined to the record. For these 
 reasons, I am of opinion the judgment in this case ought to 
 be affirmed. 
 
 L'HOMMEDIEU, Senator. Two months had elapsed after 
 the vessel's sailing, before the insurance was made, It was
 
 STATE OF NEW-YORK. 46 
 
 then effected at a premium of twenty-five per cent. This is ALBANY, 
 evidence of extraordinary risk ; and it is more probable that 
 the insurers knew of her situation, than that the insured 
 made anv concealment. We cannot suppose the insurers 
 
 J - E. Jenks and 
 
 would have asked so high a premium, if they had not known others, 
 her situation, in what port she lay, and the possibility of her 
 sailing with such papers. But these cannot be said to en- 
 hance the price of insurance, as they would be rather in fa- 
 vour of her safety than against it. The captain did not go 
 to a French port voluntarily. After he was there, and could 
 not bring away his property, it was more to the interest of 
 the United States, that he should bring some equivalent, 
 than to leave *the whole, never to be recovered. On this * 47 
 
 ground, among the others already stated by the court, the 
 conduct of the assured ought not to be considered against 
 the intent and meaning of the laws of the United States. I 
 shall only observe, that it is probable that the vessel could 
 not have escaped, or come from a French port, without the 
 clearance or certificate found in her, but at the risk, perhaps 
 certainty, of being taken by the French cruisers, who 
 knew her situation. On the whole, I am of opinion, that 
 the judgment of the supreme court ought to be affirmed. 
 
 The whole court concurring, the judgment of the su- 
 preme court was unanimously affirmed. 
 
 Thomas Waters, Richard Thome, and Sarah his 
 Wife, Appellants, against John Stewart, Re- 
 spondent. 
 
 THIS was an appeal from a decree of his honour the Under our act 
 
 . ii-i eoneerningjuHg- 
 
 Chancellor. The complainants filed their bill, as well in be- nu-i.ts ui t-.\'<> 
 
 . . 11* r o cutions, an euui- 
 
 half of themselves as others, the heirs and devisees ot Sa- ty of redemption 
 rah Wisncr, deceased, who might come in and contribute, JKyj[J 
 &c. &c. The bill set forth an indenture of three parts, da- jy^' uli ' >n
 
 47 CASES IN ERROR IN THE 
 
 ALBANY, ted the 8th April, 1769, between Henry Wisner, since de- 
 v _ * } 'X_^ cease d, of the one part, Sarah Waters, since deceased, of the 
 Thomas Waters second part, and the complainant, Richard Thome, of the 
 ud others third part ; which indenture was admitted by the defend- 
 Steu-art. ant . an j amon g other things, as far as it is material, sub- 
 stantially contained as follows : That in consideration of a 
 marriage about to take place between the said Henry Wis- 
 ner and Sarah Waters, she had conveyed to him ail her 
 estate, real and personal, authorizing him to sell and dispose 
 of the same ; the moneys thence arising to be enjoyed by 
 the said Hennj Wisner, during the joint lives of him and 
 the said Sarah, he maintaining and educating three children 
 of her's by a former husband, namely, Elizabeth, Hannah, 
 and Thomas Waters, till they should come of age, or marry, 
 if the said Henry should so long live. But in case the said 
 Sarah should survive the said Henry, the money arising 
 from her estate as aforesaid, should be paid to her ; and in 
 case he survived her, it was to be paid to her children be- 
 fore named ; and that in such case she should have and en- 
 & 48 joy during her widowhood, a dwelling-house and *farm of 
 
 his, situate in Goshen, containing about seventy acres, which 
 were the premises in question. It was admitted that the 
 marriage between Henry Wisner and Sarah Waters took 
 place ; that he took and disposed of the property she con- 
 veyed to him, to the amount of 425/. That Henry Wisner 
 died in the life -time of Sarah, insolvent, but did not secure 
 to her the money arising from her estate as he covenanted 
 to do ; consequently, that a considerable sum was due to 
 her after his death, and to her representatives after her 
 death, from Wisner's estate, which can never be obtained, 
 unless the premises in question are made liable. That Sarah, 
 the widow of the said Henry Wisner, enjoyed the said house 
 and farm in Goshen, during her widowhood, under and by 
 virtue of the said marriage contract, and until her death, 
 which happened in or about the month of July, 1801. It 
 was also admitted, that Henry Wisner, deceased, in his life- 
 time, to wit, on the 14th day of February, 1786, mortgaged
 
 STATE OF NEW-YORK. 
 
 the said house and farm to William Beekman, to secure pay- ALBANY, 
 ment, on or before the 14th clay of February, 1787, of 3877. 
 13*. with lawful interest, bona fde due. That William 
 Betkman on the 13th of October, 1782, for the consideration 
 
 . P J . olC ilr. 
 
 of 300/. (200/. whereof was then paid, and a bond given lc r 
 
 the remaining 100/. payable on the death of the said Sarah 
 Wisner,} sold and assigned the said mortgage and a bond 
 which accompanied the same to the respondent, John Stew- 
 art, with all the money due and to grow due thereon. That 
 a judgment at law was obtained against the said Henry 
 Wisner, deceased, and thereupon a fieri facias and ven- 
 ditioni exponas were issued to the sheriff of the county 
 of Orange, who, by virtue thereof, in the life-time of the 
 said Sarah, the widow of the said Henry Wisner, among 
 other things, sold the equity of redemption of the said 
 mortgaged premises, subject to the said widow's estate 
 therein, to Henry Wisner, junior. That Henry Wisner, 
 junior, on the 19th day of April, 1791, conveyed, among 
 other things, the right and interest he had purchased in 
 the said premises, to Polydcre B. Wisner, as a trustee, to 
 enable him to sell and convey the same; and Polydore B. 
 Wisner, on the llth of January, 1793, conveyed the said 
 equity of redemption in the said mortgaged premises to 
 the defendant, John Stewart, in satisfaction of a book debt 
 he had against Henry Wisner, the elder, then deceased. 
 *Thus the defendant, as assignee of the mortgage and the * 
 
 purchaser of the equity of redemption, under a sale on an 
 execution at law, claimed to be the legal and absolute 
 owner of the house and farm in question. It was admitted 
 that Henry Wisner, deceased, by will duly executed, de- 
 vised the said house and farm to his two daughters Eliza- 
 beth and Sarah, in fee. That, since the death of the said 
 Henry Wisner, and before the bill was filed, the said Eliza- 
 bet/i and Sarah, in due form of law, conveyed all their 
 right and interest as such devisees in the said house and 
 farm, to the complainant Thomas Waters, in fee. The bill 
 was to redeem the house and farm, by paving to the re-
 
 9 CASES IN ERROR IN THE 
 
 AL fso4 fY> s P nclent > Stewart, what he was entitled to receive as the 
 
 \^-^~*^ assignee of the mortgage, that is to say, the sum he paid 
 
 and a o eiS with interest;, or, if he should be entitled to it, the whole 
 
 J. Stewart. am unt of the mortgage-money and interest. This right 
 
 of redemption was contended for before the Chancellor on 
 
 two grounds ; 1st. That the complainant, Waters, and the 
 other children and heirs of Sarah, the wife of Henry Wis- 
 ner, were creditors under the marriage contract ; and that, 
 in equity, that contract bound the premises in question to 
 pay those demands, alter paying the mortgage given to 
 Beekman. 2dly. That an equity of redemption could not 
 be seized and sold by virtue of an execution at law, and 
 that consequently, Thomas Waters, having purchased and 
 taken a conveyance from the devisees of the estate, had a 
 right to redeem the mortgaged premises upon equitable 
 principles, by paying the assignee of the mortgage what he 
 was entitled to. 
 
 The Chancellor being of opinion against the complainants 
 on both grounds, decreed that the bill should be dismissed 
 with costs ; and thus assigned the reasons on which he had 
 pronounced. 
 
 Mr. President This cause came before the court on a 
 motion for the dissolution of an injunction, issued to re- 
 strain the defendant from obtaining possession at law of the 
 premises in question. On that motion the whole ground 
 of controversy was explored, and the counsel for the par- 
 ties, discovering that a determination on it would involve a 
 decision on the merits generally, argued it a second time, 
 as on a final hearing. In doing this, they united in pre- 
 senting, as a determining point between the parties, simply, 
 whether an equity of redemption in lands mortgaged in 
 50 * fee, is subject to a sale *as a fieri facias ? To determine 
 
 this question, the nature of the subject, and the course of 
 the arguments of the counsel, lead me cursorily to trace the 
 progress of the English jurisprudence, (as far as it has any 
 bearing on this point,) from its departure from the common 
 2
 
 
 STATE OF NEW-YORK. 5O 
 
 law until the act of the 5th Geo. II. and the subsequent ALBANY, 
 
 _ . . i , 1804. 
 
 modifications it has received here. It is certainly a sound 
 moral principle,, that every description of property held by 
 a debtor should be subject to the payment of his debts. 
 The policy deduced from the feudal system, was, however, 
 far from being in strict unison with this principle ; and had 
 so far blended itself with the English institutions, as ge- 
 nerally to resist the infusion of those dictated by more just 
 and liberal views. This detracted from the security and 
 preservation of lands in the hands of those who held them, 
 and their heirs ; for, at common law, only goods and chat- 
 tels, and the growing profits of land were, on 3. leva ri facias, 
 or a fieri facias, liable for the satisfaction of debts. This 3 Co. 11. Jfar.- 
 
 .1 J bert s case, - 
 
 strictness was somewhat retained by the statutes of elegtt; inst.sW. 
 for it appears to have been a reluctant departure from the 
 more ancient doctrine, certainly not reconcilable to its ge- 
 neral scope and object, and equally remote from the prin- 
 ciple the framers of the statute appear to have been dispo- 
 sed to approach: for, instead of carrying the remedy the 
 length which complete and effectual justice required, it 
 subjected only half of the debtor's real estate to an extent, 
 with a reversionary interest to him or his heirs, after the 
 debt was satisfied from the profits of the lands". The in- 
 road made on the common law principles, by giving the 
 elegit, has, however, been protected by several successive 
 
 statutes : thus Blackstone, in his Commentaries, enume- 2 /#. 353. citcs 
 
 , , r Use of the Lav, 
 
 rates, among the evils arising from the doctrines o* uses, J53> 
 
 the defrauding the creditor of his extent for debts. lie adds, * ^ "; ^J 
 
 to remedy these inconveniences, abundance of statutes J f /e n c r ; 
 
 were provided, which, among other things, made the land c. 10.29 for. H. 
 
 liable to be extended by the creditors of cestui que use. 
 
 Among these, the statute of uses, and of frauds and per- 
 
 juries, were most effective ; and, after the passing of the 
 
 latter statute, a trust estate, whether declared or resulting, 
 
 was considered, in the language of Blackslone, "as equiva- 2 III. 3V. 
 
 lent to the legal ownership, governed by the same rules of 
 
 property, and liable w every charge in eqn'tij. v.-h-vh the
 
 50 CASES IN ERROR IN THE 
 
 ALP-.vxv, other is subject to in law" " The trust may descend ; be 
 
 \^*^-*^j alienated ; is liable to debts ;* to executions on judgments, 
 
 ,'" n , ms .y\ Htcls statutes, and recognisances, (by the express provision of 
 
 v - the statute of frauds,) to forfeitures, to leases, and other en- 
 
 J. Stewart. 
 
 cumbrances, nay, even to the curtesy of the husband, as if 
 
 * 51 it was an estate at law." Thus, in the case of Casborne v. 
 
 i ^Jltk. 603. in Scarf e and Inglis, Lord Hardwicke lays it down, that an 
 equity of redemption cannot be considered as a mere right: 
 but such an estate whereof there, may be a seisin, and that 
 the person entitled to it is considered as the owner of the 
 land; that an actual possession, clothed with the receipt of 
 rents and profits, is the highest instance of an equitable 
 seisin ; and that the mortgagee, as to the legal estate and 
 inheritance, is merely a trustee for the mortgagor, until the 
 equity of redemption is released or foreclosed. In the case 
 
 2 Vent. 401. in of Amhurst v. Darvling, an advowson, appendant to a mort- 
 gaged manor, had, before that, been held in the nature of 
 a trust for the benefit of the mortgagor: so, in the case of 
 Tern. u-lo. in the Attorney-General v. Hasketh et al. in which the same 
 doctrine had before been laid down ; and it is in that case 
 expressly declared by the Lord Keeper, that the court which 
 supports trusts, will prevent trusts from doing mischief. 
 The spirit of these cases has been recognised and enforced 
 in the British courts of common law. In the case of The 
 
 J)<wr. Cio. i'5 Kin? v. 71ie Inhabitants of St. Michaels, decided after our 
 
 f III 
 
 revolution, Lord Mansfield emphatically declares it to be. 
 " an affront to common sense, to say that the mortgagor is 
 not the real owner." And whatever might have been the 
 construction at an earlier day in those courts, in equity, the 
 intent of the parties has been permitted to give a com- 
 pfexion to this kind of transaction, and to constitute it a 
 naked security for the payment of money, without any of 
 the substantial rights of ownership. It is merely a lien un- 
 til it is foreclosed, or the possession acquired by the mort- 
 gagee : thus the mortgagor, until either of these events oc- 
 cur, is the beneficial owner; he takes the rents and profits 
 without any account ; he is a freeholder, qualified to vote
 
 STATE OF NEW-YORK. 61 
 
 as such, and he is deemed the owner of a landed estate ALBANY, 
 within the English settlement laws. The provision for ad- L ^_ ^, 
 mitting him to vote, is, indeed, by statute ; *but it ap- Thomas Waters 
 pears to me merely a declaration of the law, previous to l others 
 the passing of the act, and introduced for greater caution. * Stewart. 
 The case of Lyster v. Dolland, reported in 2 Brtytbritt Ch. D OUS . 455. Ea- 
 Rep. 478. and \ Vesey, jun. 431. does not impugn the ge- ^#52 
 
 neral doctrine; for in the report of that case in 1 Vesey, the 2 Laws JV. F. 
 Lord Chancellor admits, " that an equity is extendable, and 
 the mortgagor is expressly let in to redeem, on the ground 
 that the mortgagee had so m;xed his own interest with that 
 of the mortgagor, that they could not be distinguished." I 
 take it, then, that an equity of redemption in England is an 
 extendible interest, and that so is the property of cestui que 
 trust in the hands of trustees. Bunb. 346. The solicitude 
 of the holders of landed estates, to perpetuate them within 
 families, combined with the genius of the English govern- 
 ment, contributed to maintain the distinction between real 
 and personal property, which obtained after the passing of 
 the statute of elegit : but the collision between the landed 
 and commercial interest being merely local, as confined to 
 Great Britain, and not so extending to its colonies as to 
 react by influencing its parliament, in which the landed in- 
 terest of those colonies had neither a direct nor virtual re- 
 presentation, the same impediments did not present to the 
 passing of the statute of 5 Geo. II. c. 7. for the more easy 
 recovery of debts in the colonies. This subjected real 
 estate to a disposition, in like manner as personal, on exe- 
 cution, and a remedy was thereby given, coextensive with 
 the property of the debtor, regardless of the distinction which 
 
 J- This case went on a principle of tlieir remaining in a lessee, after an as- 
 signment by way of mortgage of all his right, title, &.:. in the term, anil after 
 forfeiture, such a degree of interest as to prevent the lessor from suing the 
 mortgagee as assignee of all the :stute, kr. of the mortgagor. I?Mt in Stone 
 v. Ewer, Silt, at West, before Kcjiyrtn, i.fi. M. T. ,7j Leo. 111. his Lordship 
 declared he could not subscribe to the doctrine laid dciyn in Katan v. Ji:i]ues ; 
 and in Westerdale v. Dale, 7 I). & /.'. 306. it stems evident that his Lordship 
 considers the mortgagee of a term for years, liable to the rent reserved.
 
 52 CASES IN ERROR IN THE 
 
 ALBANY, had been so sedulously preserved in Great Britain. This 
 , l *L/ statute so far extended in practice in this state, while a colo- 
 Thomas Waters ny, as to affect lands by sales on executions, issued on judg- 
 and others ments obtained against the executors of debtors, on the prin- 
 J. Stewart. c ipl e , that the statute of 5 Geo. II. had, in its operation, so 
 far as respected the interest of creditors, completely converted 
 real into personal estate. It is certain, that sales, of equi- 
 ties of redemption have been uninterruptedly made, from 
 the time of passing that statute, until the legislature passed 
 
 L. M Y. Green- the statute of 19th March, 1787; and the same practice, as 
 
 leafs ed. 40r. . . ., 
 
 #'53 to such saies *nas continued to prevail under the latter 
 
 i liev. Laws,3BS. statute. This statute subjected every species of estate, 
 comprehended in the very extensive description of "lands, 
 tenements, and real estate," to be sold on execution, and is 
 strictly compatible, in its most comprehensive construction, 
 with the general provision, that both real and personal 
 estate, in the hands of the heir or executor, (and whether the 
 debt was contracted by specialty in which the heir was 
 named, or otherwise,) shall be applied to the satisfaction of 
 the debts of the ancestor,, or testator. There is one ob- 
 jection which was strongly urged against giving effect to 
 those sales here, and that is, that the purchaser could not 
 take the effect of it at law. If this position was correct, I 
 do not think it is so forcible as the counsel who urged it, 
 A sale on execution is not enforced peculiarly by the court 
 under whose process it is made ; the evidence of the sale is 
 furnished by the sheriff, and the purchaser elects the forum, 
 to which he intends to resort, to give him the benefit of it. 
 If any of the fora of the state are competent to give him the 
 effect of his purchase, every intent of the sale is fully ac- 
 complished ; and I know no legal or equitable principle 
 that can repel this result. But if the mortgagor was pos- 
 sessed, at the time of the sale, the controversy must strictly 
 be between the mortgagor and purchaser : no inconvenience 
 can arise from compelling the former to yield his possession 
 to the latter. Thus, in a recent case, it has been held in 
 the K. B. in the case of Bristtw v. Pcgg, 1 D. & E. 758*
 
 STATE OF NEW- YORK. 
 
 25 Geo. Ill.f i f there is an existin S tkle Paramount the P er ' AL f^f Y ' 
 
 son who holds, he may avail himself of it by showing it, and ^^^ 
 
 it does not lie in the' mouth of the mortgagor to allege its Thomas Waters 
 existence ; for, notwithstanding a title might exist, by virtue 
 
 of which the person actually seined might be ousted, it would __^^__ 
 
 seem strange that his right of seisin should pass by the sale, t See^to v. 
 
 and the latent equitable interest which he had in the lands, w h,cb'seemi i<> 
 
 i vr>o . have shaken Bri- 
 
 should be retained by him. from these considerate is , ttng v p at 
 from the number of estates which ckpeud on supporting 1 *J 
 sales of this nature j from the long practice which has ob- 
 tained respecting them ; and from the great inconvenience 
 which would result from the doctrine, that however great 
 the disproportion between the sum secured, and the value 
 of the estate charged with it, the latter might be protected 
 from being applied to the satisfaction of judgment creditors 
 on executions, I think sales of this #kin<l ought to be sus- 
 tained ; and that, whether the mortgagor is considered as 
 the real owner, or the mortgagee is considered as his trus- 
 tee, an equity of redemption is within the purview of our 
 statute, and subject to sales on execution. The complainants' 
 bill must, therefore, be dismissed with c 
 
 Riggs, for the appellants. We admit the moral justice 
 and policy of making every man's property liable to his 
 debts, and we shall even concede that with us these princi- 
 ples have been carried further than in JLngLnd; but notwith- 
 standing this, the distinctions between legal and equitable 
 estates, have in each be^n preserved, their boundaries 
 equally marked out, and the/am by which they are to be ap- 
 proached kept invariably distinct. In equity, the mortgagor 
 is considered as owner of the land ; at law, the estate, on 
 executing the mart-age, is in the mortgagee, and he may, 
 unless restrained by his covenant, enter immediately. 
 Po-w. on fart. 105. 226. And though a mortgagor, kit m 
 possession, pays no rent,; that arises merely from the con- * tf p/ * 
 tract, the interest of the money being an equivalent. 
 a mere tenant at sufferance to the mortgagee ; for after for-
 
 54 CASES IN ERROR IN THE 
 
 ALBANY, fciture, so completely is the legal estate vested in the mort- 
 
 1804. . 
 
 \_^ f ^ Y -^^ i j gagee, that tne mortgagor is not entitled to the common no- 
 
 Thomas Waters t jce to quit, which must be given to a tenant at will. The 
 
 and others 
 
 v. idea of a constant piactice to sell, under a fieri facias, equi- 
 
 J. Stewart. ^ 
 
 , ties of redemption, is a mistake ; I never heard of but two 
 
 instances ; one was settled, the other is now in dispute. 
 
 the maxim, therefore, of communts error facit jus, cannot 
 
 apply. But errors merely acquiesced in, and neverdisputed, 
 
 t In Lench v. do not constitute the law.f Actions by and against execu- 
 
 practice' ' under tors anc * administrators, had been from the date of our re~ 
 
 the lords' ac t volution entertained in justices' courts ; yet the first time 
 
 had been one 
 
 way for thirty the point was brought before the supreme court, they re- 
 years, but was 
 
 altered the first versed the judgment below, t So under the act giving cop-- 
 time the statute . r i A 1 r,- 
 
 came under con- nisance or plaints. Another instance is afforded by the cor- 
 
 siderntion of the *. r \T >v i '-i-t i i /- r 
 
 court. Dour? 68 poration ot New-Tor k. I hey had for forty years been in 
 
 i jv^i'' T tre rf t ^ e habit of creating penalties, and giving half to the inform- 
 
 *'>' er. Suit upon suit had been brought, and recoveries had, 
 
 yet their right to do this was overruled the instant it was 
 
 attacked in the supreme court. All power of selling under 
 
 executions at law, landed property, or any tiling savouring 
 
 of the realty, is by statute provision ; and what the words 
 
 of the statute do not cover, cannot be sold. Therefore, 
 
 X - equities of redemption, *even of chattel interests, in terms of 
 
 1 O O 
 
 years, are not saleable under a levari facias^ because the act 
 has not the words " equitable interests." Burden v. Ken- 
 nedy ^ 3 Atk. 738. Lyster v. Dolland, 3 Bro. C. Rep. 478. 
 1 Vez. jun. 431. S. C. \vill be found to this point, notwith- 
 standing the chancellor's apprehension of its bearing the con- 
 trary way. An equity of redemption is not known at law ; 
 it is a mere creature of chancery, and cannot be contemplated, 
 therefore, as an object of sale, by a court which does not ac 
 knowledge its existence. What is not, according to legal con- 
 templation, in possession, but rests merely in right, cannot, 
 be taken in execution. Chases in action, therefore, cannot. 
 be seized on. Francis v. Nash, Cas. temp. Hardruicke, 53. 
 Impcy's Sherij?\ 157. On the same principle, goods pawned 
 demised, or let ten for years, are not liable to aji.fa* /-
 
 STATE OF NEW-YORK. 
 
 peifs Sheriff, 158. Audleij v. ffalsey,} Cro. Car. 148. ALl'.ANY, 
 Kitchen, 226. To make an equity of redemption saleable at v_^ ^^/ 
 common law, will defeat the ends of distributive justice. Thomas U w 
 
 , , . UIK! others 
 
 A debt due on a book account, note, or on a bond, is as v 
 
 much a debt in conscience as one on a judgment ; but if the 
 
 decision appealed from be confirmed, one judgment credit- f Tlie action 
 
 ... , there was ti-o- 
 
 or may run away with even the equitable estate, and ex- ve r for goods, 
 elude all the other bonafde, though simple contract credit- J v ; a e s> JjJJJSSJ 
 ors, from every farthing. It has been the policy of our ^ t 
 courts to extend equitable assets, because they are appro- ^J^!" 1 ',^ 011 ^ 
 priated in payment of debts pan passu. For this purpose g'"H the co- 
 
 r * nusor owner, 
 
 an equity of redemption is considered as equitable assets, though the iibe- 
 
 ... .. , , . , rate \v;,s after- 
 
 not for the purpose of rendering it inapplicable, but that it \var.is, should 
 
 may be equally distributed. 2 Atk. 290. J 1 Fern. 410, 41 1 , 
 
 412.$ Fern. 61.** 3 P. Wms. 341. Sir Charles Coxe's case. 
 
 3Keb.307. Amb.308.^ 2 Freeman, 115. 3 Wooddeson, 
 
 487. It is so perfectly an equitable interest, that in an ac- $ Cote v. War- 
 
 den. Pluchnet 
 
 tion against the heir of a mortgagor, he can plead nen per v. Kirk. The 
 
 r , . distinction be- 
 
 descent, though entitled to an equity ot redemption. 1 rorv. tween mortgages 
 on Mort. 369. In all cases where land can be taken for "e a ^ w *^C 
 debts, the debt must be a lien on the land, and in case of J^ ^"j;; 
 the death of the judgment debtor, after an intermediate allowed as u> the 
 
 nature of the iu- 
 
 alienation, a scire facias *goes against the tertenant. But in tn^st left in tiu 
 
 i i i i r '""i'tgagor. In 
 
 the case ot a mortgage, then a judgment, then the death ot mortgages fur 
 the mortgagor, to a scire facias against the tertenant, he may B ionoeing a le- 
 show title in the mortgagee ; which demonstrates the legal JjJrSJil* Sj 
 
 estate to be out of the heirs of the mortgagor. The salea- u-acts the eqaiq 
 
 ot redemption, 
 bility of an equity of redemption is not denied, but conve- nl j;ives it the- 
 
 . tjuality of tlie rc- 
 
 nience demands it should be in chancery. A mortgage may \ t r.sionai-y int- 
 have been for gl 0,000, and only one thousand due; the ^'ase, therefore! 
 registiy may show the full amount of the original sum lent ^5S?Aj!i 
 to be still owing;, and the equity be purchased, under that B , sseU - But if 
 
 * - \\\(: moi-tgage ) 
 
 presumption, for a trifle. The reverse maybe the case j- > fru, arul there 
 
 is not any legul 
 
 double the sum apparent may, from accruing interest, be i merest left in 
 
 ' i f li "' '"Orl:',;t^ni\ 
 
 due, and the equity bought tor a large sum, when in tact not t |, e ..j.iiu ot re 
 
 ,, , r , i i <ii demotion is e- 
 
 worth a cent. Each of these rases may produce :v bill in ^,5,^,1, . 
 
 ' : 5 
 
 ** Sctileji v. Gc-xc- t| Hcrtwll v. (.'/,:
 
 56 CASES IN ERROR IN THE 
 
 ALBAXV, chancery. The mode of coming at equities of redemption 
 % '"Jl/ i s easy, without any violation of principles, preserving, at 
 Thomas Waters the same time, the true distinction between equitable and 
 legal estates, and the jurisdictions by which they are cog- 
 J. Stewart. nisable. Let the creditor sue to judgment, then, by the 
 analogy adopted in chancery, as the judgment would at law 
 attach on the legal estate, its operation in equity will affect 
 the equitable interest, and an encumbrance be created, 
 t That is, where which on execution sued out,f will entitle the judgment cre- 
 ditorto his bill against the mortgagee to redeem. 3 Atk. 
 
 200 4 * PoW ' OH M rt " 349> 359 > 3 
 
 Watts. This brines the whole matter before the court, which alone 
 
 Gns-wold v. 
 
 Mar&ham. can give full relief; the account on the mortgage is entered 
 
 into; the sum due upon it discharged, and the balance paid 
 
 tfi Rev. Law, over. The statute^ by which trust estates are made lia- 
 
 ble to debts, will not warrant the decree complained of, 
 
 That act relates only to fraudulent and covinous trusts, 
 
 in which the cestut que use has the sole beneficial inte- 
 
 rest ; it is a part of the statute of frauds, and therefore our 
 
 ** 1 Rev. Laws, act declares that** the land shall, under the sale, be held 
 
 discharged of all such encumbrances. This would de- 
 
 feat the mortgage. The English authorities confine their 
 
 law of frauds and perjuries, of which ours is a copy, to 
 
 these trusts, and do not extend them to equities of re- 
 
 l\Pmckt\..lt- demption. 2. Sound. 203. Hard. 46r.f| 1 Black. Rep. 1454$ 
 
 iTjSt?eJT? P ur act > subjecting lands to debts, makes a provision in 
 
 Wheats. case t j )e p urcnaser should be evicted : now, it is impossible 
 
 J Rev. La-.es, for a man to be evicted from an equity of redemption ; 
 
 and if he v/as by the mortgagee, he would be entitled to 
 
 * 57 ^recompense from the judgment creditor himself. This 
 
 would make the remedy recur to the same point from 
 
 whence it set out. In the case mentioned, there could be 
 
 no legal seisin of the interest to be sold, and the form of 
 
 %y\ Ke-c.Ltw, the execution is of lands u whereof seised.^]" All that can 
 
 be obtained against a mortgaged estate by a judgment at 
 
 law, is an equitable lien ; for a judgment creditor cannot 
 
 tack. 1 Pow. on Mart. 526. to 529. After sale of an 
 
 2
 
 STATE OF NEW-YORK. 57 
 
 equity of redemption by the sheriff, he could not give pos- ALBANY, 
 session ; ejectment would not lie upon his deed, and chan- x^J^-^/ 
 eery must be at last resorted to, to give effect to the sale. Thomas Wate* 
 
 V. 
 
 . . J. Stewart. 
 
 Hoffman and Hamilton, contra. As the lands and real _ 
 
 estate of a debtor may be taken in execution, under our 
 statute,j the words being " all and singular the lands, tene- f i Rev. Laws, 
 merits, and real estate," the only question is, who is the 
 owner of lands or real estate mortgaged ? If the mortga- 
 gor was out of possession, we concede the sale would not 
 be valid ; and that was the circumstance of the case from 
 Atkuns ;t the termor had parted with the possession. Till t That,however, 
 
 , , ... c was not the point 
 
 the decision in Brown and Ve&ey, jun. the saleability ol an on which thede- 
 
 j i i cision turned. In 
 
 equity of redemption on an execution was never doubted ; Ki , lf v Maris . 
 and, in favour of its being vendible under a /. fa. the f^/tferred 
 opinion of Mr. Powell^ is a very strong authority. There tfjrttteijjijg. 
 can be no reason for excluding it from this incident an- session; but in 
 
 ,. . Sfurley v. Wutta, 
 
 nexed at law to real estates, when it partakes ol every other n,. 200. the con- 
 trary is rather to 
 quality which characterizes land. I he mortgagee is pro- be sup p OS ed. 
 
 prietor of the mortgaged premises only so as to protect his {**; ^f^ 
 security; against all the world but him, the mortgagor is ,*** 
 the real owner. He mav when in possession levy a fine,*] law cm thi* 
 
 point ; in my 
 
 ov suffer a common recovery ,i| and must ^'therefore have edition, which is 
 
 . .. , ,, t i v .. of 1799, no opi- 
 
 the legal freehold in him. His fine bars all rights but that ni0!l is giver , 7 
 
 and the case ci- 
 ted is contra the 
 
 ftThis he may do, without having any interest in the land, and in such a exter.dibility. 
 case the fine operates not on the land, but against the parties, by way of 
 estoppel. 'Anciently, the eoguisee was put, on n purchase tuucie, into pos- 
 session before the line was levied, and the vendor, by wuy of security, levied 
 the fine afterwards. 3 Bac. Mr. n. ed. 194. Under the words of our 
 statute, a fine passed by a person out of possession, will be as effectual against 
 liis rights and the rights of his privies, as if he was in possession ; for it will 
 le a perpetual estoppel, unless the persons claiming can bring themselves 
 within some of the exceptions. On this principle, the case of Wealc v. -Lower, 
 Pollex. 54. was determined. Fines SJtr concesait, and cognisance <k droit 
 tanturn, are for the. purpose of passing interests where the coguisor has not a 
 freehold in possession. 
 
 tf Either to be a tenant to the prxcipe, or to make one, it is necessary that 
 the tenant, in one case, or the grantor in the other, should li.oe the K>;,-;;1 
 freehold in possession. Qy. How would a mortgagor, after a mortgage in 
 fee, be considered ? The argument, as to a mortga^r siifte.-ing a recovery, 
 is as good for the mortgagee. See P~lm. 135. Cro. Jac. 595.
 
 58 CASES IN ERROR IN THE 
 
 ALBANY, of the mortgagee, who is not afFectedf by five years' non- 
 
 1 804. . 
 
 claim ; and need not make an entry. 1 Pow. on Mort. 220. 
 
 Thomas Waters In consequence of this ownersmp of the mortgagor, his in- 
 
 ancl others . . . r , 
 
 v. terest in the equity ot redemption has all the properties of 
 
 a legal estate. It passes by a general devise of u all" my 
 
 I The generality real and personal estate. 1 Poru. on Mort. 353. It de- 
 
 of this position 
 
 may, perhaps, he scends ; the personal estate is first liable for debts; it may 
 
 doubted. A fine , -i i r n 
 
 <ioes not a fieri be entailed ; it tollows the custom in borough English. 1 
 
 any estate which 73 o</* TIT i \ 
 
 it does not de- "&& 34 6. Way, a mortgagor gains at law a parish set- 
 la rn to^rit'ilT tlement m consequence of his legal ownership.^ Doug. 
 As between _ the $32.$ Lord Mansfield in that case says, "it would be an 
 
 parties and their ' J 
 
 privies, the in- affront to common sense to say the mortgagor is not the 
 
 lent will control 
 
 the operation, real owner." But further, a mortgagor is not accountable 
 
 Freeman v. 
 
 Barnes, i Sid. to a mortgagee for profits, even after the mortgage is for- 
 
 460. The mere r . \ \ c i i * i 
 
 circumstance of ieitcd. A mortgage in fee revokes a devise only pro tanto.^\ 
 Sting 01 ' morT- A lie r '8 ht of P resentin g belongs to the mortgagor of lands 
 gage, would not, to which an advowson is appendant.ft Our statute book 
 
 U may be argu- 
 
 td, prevent the recognises the mortgagor as the freeholder : he is declared 
 
 -fleet of a fine ... 
 
 in barring Hie to be qualified to vote at elections in virtue of the free- 
 
 Hiortffagree. If t , ,j.j. , . ,-,-,, r , 
 
 the mortgage be " 1{ H4 m nim A he estate ot the mortgagee^ has none of 
 Se Interest Te*l th ' ese q ualities - He ha s only a qualified right sufficient to 
 
 fhl ai ' Iy em m P rOteCt his debt ' T make his title efficient, he must fore- 
 possession, a fine close; but though he do this, and enter, he is considered 
 and non-claim , 
 
 would not, i pre- but as bailiff to the mortgagor, and liable to account. ^T^T If 
 
 sume, be a bar. 
 
 Fermor's case, 3 Rep. But should the estate he forfeited, and interest not paid, then it may 
 he a question whether a sale by a mortgagor in possession with a fine levied, would not, after 
 )Ive years, bar the mortgagee. Saff'yn's case, 5 JKep. 123. The reasoning in favour of suck 
 a result may possibly be enforced by the case of Dighton v. GrenvUle, Cruise on Fines, 246. 
 where the decision of the House of Lords is given, though in none of the Reports of this case 
 has it been noticed. A mortgage in fee may possibly be distinguished; for the mortgagee 
 may, perhaps, there say, purtes finis nihil liabuerunt. 
 
 % Ft perhaps depends rather on his possession ; for if the mortgagee be in possession, he will 
 gain the settlement. Per Ld. Mansfield, in the case cited. 
 
 The Jang v. St. Michaels. 
 
 If This is in equity ; at law it is contra, and on the very principle that the legal estate is part- 
 ed with by the testator during his life. See I Vern. 342. 
 
 tt This is true in equity, but not at law, for the mortgagee having the legal estate, has the 
 right of presentation ; and the mortgagor, to prevent its exercise, must apply to equity. Gal~ 
 Icy v. Selby, Com. Rep. 343. Croft v. Poiael, ibid. 609. 
 
 ** While in occupation. I Rev. Latas, 27.4. When he parts with that, he loses his 
 right. 
 
 $ He has, when in possession, a right to vote, ibid, afcd note the diversity of expression. 
 T^f If th? decree of forcrlos'ire be opened.
 
 STATE OF NEW-YORK. 58 
 
 ke even assigns his interest, he still continues liable for the ALBANY, 
 
 , . 1804. 
 
 waste and depredation of his assignee. A general devise 
 by him of all his estate, will not, even after foreclosure 
 #and possession, pass the lands mortgaged-! It goes to 
 his executors as personalty, and not to his heirs, as the 
 
 realtv would. 1 Pow. on Mart. 438. et seq. He has but * 59 
 
 .., -it After foreclo- 
 
 a chattel interest, Where then can the lee be, it not in the sure, if the de- 
 mortgagor ? This is further established, because a mort- JJi^J3 pj! 
 gage will pass by a will not attested according to the SVffJjj 
 statute. 1 Pow. 455. The interest of the mortgagee is 
 
 intrinsically nothing more than what arises from the con- Garret v.Evere* 
 
 * ... Jtlosel.'i, 30* 
 
 tract of borrowing, and therefore, when the debt is paid, ffthe will be pro- 
 
 r . , perlv executed 
 
 there needs no reconveyance ot the estate to the mortga- acc( , r di n g u , u, e 
 gor4 This shows the legal estate remains in him, by vir- JJJJJfc" ^pT*. 
 tue of the equity of redemption, and is necessarily liable for ^ 8 ; t2 See ^ ow 
 his debts by sale at common law under an execution. If J'g^JJjjjjJ 
 
 this would destroy the mortgagee's security, then it could \. Owen, i Jtk. 
 
 ' . , . 5'20. that to re- 
 
 not be valid ; but it is not so, the land remams subject to vcst the estate, 
 
 the mortgage. It is not an answer to this reasoning to Jj^? l 'y ',,,',!>; 
 say that our positions rest on chancery decisions. In equi- yJ^^^taS- 
 ty, and at law, the rules relating to landed property are the gage ^'^JjJ 
 same. 1 D. & E. 762. per Buller, J. Courts of law have %M no recon- 
 
 . . veyance, licld to 
 
 latterly been disposed to acknowledge equitable principles, protect a jmi;,'- 
 
 , -~ , . i inent crcilitop 
 
 to avoid sending creditors there. Un this account the as- aSH ; llSt a st . cun ,i 
 signer of a bond, though it be a chose in action, cannot, "IS^^ ^J"* 
 after assignment, release the obligation; nor can even the Jje gftl! 
 obligor, after notice, discharge it. The inconveniences of utc bcnig in the 
 
 selling an equity of redemption on account of an existing Gtodtitfy \. 
 
 Morgan. 
 mortgage, are imaginary. They are no greater than in a 
 
 sale on a third judgment, where there have been two pre- 
 vious ones for the penalties of bonds. The purchaser takes 
 subject to the encumbrance. An equity of redemption is 
 equitable assets^} only in a certain sense: among those 
 
 V The cases on this point in the English books, seem to be involved in 
 some degree of tx.rplexily. In Sir Charles UoJ-'s case, 3 P. Wing. Ml. and 
 in HartweUv. Chilert, decided upon the authority of that i-ase, th.- equity of 
 redemption of a mort^t.d tci in, was held to he equitable usF-ets. It appears, 
 however, that it is not ; for, as the executor, had there not ln-esi a UK,, l^if.-t-, 
 would have had the U-rm to apply in a course of administration, it would 
 
 O
 
 59 CASES IN ERROR IN THE 
 
 ALBANY, \vho have no lien on the land j such as on a bill to redeem 
 \ _^i *by general creditors, or in a trust for payment of debts ; 
 
 Thomas Waters but not against a judgment creditor, who by his very judg- 
 
 1 v! " ment obtains a lien which will entitle him to redeem. 1 
 
 Po-vu. on Mort. 348. To force him to this alone is a 
 
 * 60 grievance for which our statute meant to afford redress, by 
 
 permitting him to sell to a person who may be able to re- 
 deem. A mortgage contract may be for ten years, with a 
 covenant that the mortgagee shall not be compellable to re- 
 ceive it before ; must a creditor, or a judgment recovered 
 immediately after execution of the deeds, wait ten years : 
 The simple mode is to sell at once under a f. fa. for 
 chancery cannot order a redemption. The argument against 
 selling an equity of redemption because it is equitable as- 
 sets, is equally forcible against selling trusts ; for by the 
 statute of uses they are made liable to be sold by the sheriff. 
 So before the passing that act an heir might have pleaded 
 rlens per descent, though a covinous trust was existing ; yet, 
 since that law has been enacted, such a trust is saleable un- 
 der execution. Though ejectment on a sheriff's deed for 
 
 seem the equity of redemption \voukl go to him also, on the same principle 
 as it is held to pass in cases of real property, to him who would be entitled to 
 the laud. Htnehins v. Latvse, 1 Leon. 155. and the cases cited by Mr. Cox, 
 in his note, 2 P. Wms. 344. Whether the equity of redemption in real estate, 
 ; hull be legal or equitable assets, may perhaps depend on another question ; 
 tliat is, whether the mortgage be in fee ; or by way of demise for a term of 
 years? In the former case it has been conceded, that it is equitable, because 
 the mortgagor has parted -with all his legal estate, and the pure equity which 
 determines the nature of the assets, is all that remains in him. In the latter, 
 as he retains the legal reversion after the term created by the demise, that 
 interest gives the quality to the assets, rendering it legal, and a judgment of 
 quando acciderint may" be had against it. Masunm v. Harding, 2 Jltk. 291. 
 Jiunb. 3.30. Fortrey v. Fortrey, '2 fern. 134. If the redemption be equita- 
 ble assets, it will not, it has be, n held, be affected by a judgment at law. In 
 the second resolution, in Deg v. Deg, 2 P. Wins. 4 1 6. it is said, " the pre- 
 mises devised being mortgaged in fee by the testator, and he having nothing 
 but an equity of redemption, could be "only equitable assets, and consequent- 
 ly- must go among all the creditors equally ; forasmuch as a debt by judgment 
 and a debt by simple contract are, in conscience, equal." Put this position 
 is a little shaken in the decision in Sharpe v. The Earl of Scarborough, 4 
 Yes. jiin. 538. It was there ruled, that an equity of redemption is not equita- 
 ble assets, at least against judgment creditors who have a right to redeem, 
 and that agai list such the court would never marshal the assets. If this de- 
 cision went on a principle of rendering equitable estates liable in equity to the 
 same lie sis as legal estates are at law, it seems to overturn the maxim of the 
 court, that iu conscience all debts are equal If, however, the mortgage was 
 by way of demise, (and the contrary does not appear,) then the judgment oi" 
 the Chancellor will not oppugn those of his predecessors. But ou these 
 points the learned in the law must make their own conclusions.
 
 STATE OF NEW-YORK. 
 
 an equity of redemption could not lie against the mortga- ALBANY, 
 gee, yet a mortgagor would never, in a court of law, be al- 
 lowed to set up the title of his mortgagee against the pur- 
 chaser ; and against the mortgagee there would be no claim, 
 because the purchase would be subject to his demand. If 
 a mortgagor may sell, why may not a sheriff? Whatever 
 the debtor can dispose of, his creditor can sell. The re- 
 medy given in case of eviction, is where the debtor *had no 
 title, and the party purchasing is evicted by a prior encum- 
 brance. But it is under that we contend the purchase is made. 
 The words of our act are, all lands and "real estate." 
 Rev. Laws, vol. 1 . 388. The form of the execution given is 
 against real estate whereof " seised." There is nothing to 
 restrain the word to legal seisins. The word seisin has an 
 equitable interpretation. 2 Bro. C. Rep. 268. 272. There 
 may be an equitable seisin of an equity of redemption, for 
 it admits of a tenancy by the curtesy, and to create such a 
 tenancy there must be a seisin of the wife. The case cited 
 from Atkyns, and 1 Pow. on Mori. 352, 353. shows this. 
 We have a complete union of legal and equitable interests ; 
 we had the first, and we bought the latter. But whatever may 
 be the reasonings from the common law and English 
 authorities, we rest on the words of our statute, which sub- 
 jects to sale under a fi.fa. " all real estates," without con- 
 fining the operation of the words to such as are legal only. 
 The English act of parliament furnishes no kind of reason- 
 ing against this, it makes land only extendible, and not sale- 
 able. Yet under that very law, lands on which there has 
 been an extent upon a statute merchant, may be extended 
 upon an elegit.i Vin. Abr. tit. Execution, M. 1. and the fThccf.se was, 
 
 r i u conusec of ;i 
 
 notes. So if a reversioner upon a lease tor years acknow- St!t1ulo wa , pu) 
 ledge a statute, &c. the rent and reversion will both be ex- ^J^S. 
 tendible4 Bac. Abr. tit. Execution, B. page 339. 2 Roll. ^^ 
 Abr. 472. Co. Litt. 135. A rent-charge^ is also extendi- ^ "g". 1 ,/^; 
 ble. 2 Slwv. 85. Comb. 391. Our policy makes land tout, A* well he 
 
 might. 
 Tlic reversion being extendible, the rent will go with it as its incident. 
 
 Tt Mvoursofthe realty, and land in the statute is 1. <'.<] to include *ny hereditament in 
 the land, and as the connsee Ins, l>y the words of the bUtuto, an estate of Irei-ho.d n 
 l>rer;ii"es, he may distrain and avow for the rent.
 
 61 CASES IN ERROR IN THE 
 
 ALBANY, more liable than the English code. On a ch ficiency of per- 
 1804. 
 
 snnal assets, the court of probates can order a sale of the 
 
 real t In the Vel 7 case of g ods pawned, the judgment 
 r v- creditor obtains an interest ; 3 Bnlst, 17.t and though these 
 
 J.Stewart. 
 
 __ cannot be taken in execution, that arises only because pos 
 
 |J 3 Kev ' Ltnos > session is proof of property, which is not the case with land. 
 * "if a man doth It is said we cannot have the benefit of our execution, be- 
 
 gage goods in 
 
 f:r 4o/. cause in the case put, a set, fa. would not lie against the ter- 
 
 borrowed upon . 
 
 th m.aiierwanjs tenant. I his reasoning would equally prevent selling where 
 condemned" /n tne ^ e g a " estate is in the trustee ; yet it was never known to 
 
 anot'iierl^tliese prevail against an execution concerning %ises,5J A vendee 
 goods shall not o f partnership stock taken in execution for a debt of one of the 
 
 be taken in exe- 
 
 cution until the firm, must, before he can have complete enjoyment of his 
 
 40/. be paid ; for J 7 
 
 the creditor \\zth purchase, discharge the lien of the partner; yet this has 
 
 an interest in _. 
 
 them." The 4o/. never been urged as a reason against such a sale. 1 he same 
 
 #' 09' principle applies to equities of redemption. Our lands do 
 
 f i fiev. Laws, not produce rents, and therefore convenience dictated our 
 
 law to sell the soil, because possession under an elegit would 
 
 never pay the debt. The act of the legislature directs 
 
 the realty to be sold in the same manner as personale state. 
 
 Fan Vechten and Eenwn, in reply. The arguments op- 
 posed to us are grounded on an application of equitable 
 rights to legal estates. They tend to confound all distinc- 
 tions between equitable and legal jurisdictions. They sub- 
 vert established forms which have ever been held the land- 
 marks of property. '1 he tenancy by the curtesy spoken of 
 * Casborne v. in the case from Atkyns,** cited in 1 Paw. on Mort. 353. was 
 
 Sctirfc anfi In- i i rii i i i 
 
 glis,\ Atk. GOS. an equitable tenancy, founded on an equitable seism, and 
 therefore no authority to prove a legal right on an equitable 
 estate. Only legal interests are liable to execution, because 
 the law gives recourse against that only, to which the officer 
 selling can give a legal title. Of lands articled, a man may 
 
 ft 8-weetapple v. be tenant by the curtesy. 2 Vern. 536.|t But can his interest 
 in such be taken on an execution ? Ejectment will not lie 
 for an equity of redemption; chancery must give effect to 
 th,e purchase ; therefore on a fi.fa. it cannot be taken, legal
 
 STATE OF NEW-YORK. 62 
 
 rights being always accompanied by legal remedies. The ALW\NY, 
 properties of an equity of redemption which it has anaio- 
 gous to an estate at law, such as being descendiole, devisa- 
 ble, &c. can be availed of onl> before the chancellor ; there- 
 fore, the same analogy would say an equity of redemption 
 can be sold only by application to him. But though the 
 equitable qualifications of property may be similar to those 
 of correspondent interests at law, that is only the result of 
 the principle of equitas sequitur legem. Not that they are 
 objects of legal cognisance. Lands articled descend; a 
 contract partly executed may be availed of in chancery, but 
 not at law, and the interests acquired under neither can be 
 liable to a sale by the sheriff. In the cases of trust made 
 saleable by the statute, no beneficial interest of a third person 
 intervenes, such as the mortgagee has at law. The neces- 
 sity of a statutet provision to make such estates liable to 
 execution, shows that the words of the law subjecting real 
 estates *to e-xecution could not have been intended to ex- 
 tend to equitable seisins, for then the other statute would 
 have been unnecessary. The right to vote and the right of 
 settlement, which may be exercised and gained by a mort- 
 gagor, depend not on his freehold, but on his possession, and 
 when he loses that, he loses his right.! Did they rest on j/ljyj* * 
 his freehold interest, they would be the same, whether in or 
 out of possession ; and the act bestowing the right of suf- 
 frage, was passed only because without it, even by his pos- 
 session, as he had no freehold, it would not be conferred. 
 Upon the same principle rests his power of levying a fine; 
 when out of possession, he cannot, 1 Pow. on Mori. 220. ; Mjg, P- 
 but after a mortgage in fee, can he make a tenanc to the 
 pracipe, for the purpose of suffering a common recovery 
 All his rights depend on his possession ; therefore he, like 
 9 disseisor, may bring trespass. The reason why partner- 
 ship stock may be sold under an execution against one 
 the firm, is, that the vendee may enter into possession with 
 his co-tenant. This cannot be done on an equity of re- 
 demption. That a reconveyance of the mortgaged premise?
 
 63 CASES IN ERROR IN THE 
 
 AL ' 3 suf Y ' * S uunecessar y> * s true nly in certain cases. If the mort- 
 
 ' *+^ / ~^J g a gor remain in possession and satisfy the debt when due, 
 
 Thomas Waters in any action, by the mortgagee, he would be allowed to 
 
 and others , 
 
 v . show performance of the condition ; and if the mortgage 
 
 " had keen given up or cancelled, a jury would, in all such 
 
 cases, be directed to presume a reconveyance. But if the 
 
 mortgage is forfeited, and the estate become absolute in the 
 
 mortgagee, then we say a reconveyance in strictness is ne- 
 
 Ix**"!"' P ' 58 ' cessar y-f ln ca se of an assignment of mortgaged premises, 
 the mortgagee is liable only w hen, after a forfeiture, and be- 
 fore foreclosure, he assigns absolutely. Not because the 
 freehold is not in him, but because he has exceeded his 
 equitable authority, equity will make him responsible ; his 
 right being there subject to redemption. That specialty cre- 
 ditors have in equity any preference is a mistaki , for, unless 
 the judgment creditor first removes the mortgage, he comes 
 
 notfiT' P> 59< ' m P ar ' P asslt >$ When he gains a preference, it is not on 
 the foot of his equitable'/z'm, but because, having discharged 
 the legal encumbrance, he stands on his legal rights, and is 
 in some degree a purchaser. 3 Atk. 293. 1 Pow. on Mort. 
 369 to 374. The argument, therefore, that the present de- 
 cree tends to defeat equitable distribution, and take away 
 64 equitable assets, remains *totallv unanswered. Chancery re- 
 
 quires a judgment creditor to sue out execution, before it 
 will allow him to redeem a mortgaged term, only from the 
 analogy which it constantly preserves to legal principles. 
 Because at law, a chattel interest, like a term, is bound only 
 from delivery of the writ. Shirley v. Watts, 2 Atk. 20O. 1 
 Pow. on Mort. 349. But at law even this does not affect it. 
 Burden v. Kennedy, 3 'Atk. 739. In Plunket v. Pierson, 2 
 Atk. 292. the Lord Chancellor asked the bar whether an 
 equity of redemption had ever been held liable to an execu- 
 tion by a bond creditor, and the unanimous answer was ia 
 the negative. In case of a mortgage in fee, the judgment 
 creditors must give notice to the mortgagee, and request 
 him to receive his money. If he receive it, the mortgage 
 being removed, execution may issue ; if he refuse, the ere? 
 
 3
 
 STATE OF NEW-YORK. 64 
 
 ditors acquire a lien on the premises, not by virtue of their ALBANY, 
 judgment, but of the noiice. 1 Paw. on Mort. 359, 360. t _ j j^*l t _., 
 Greswoldv. Mar sham, 2 Ch. Cas. 170. The words of the Thomas Waters 
 statute do not say equitable interests ; and this is the ex- 
 press ground of the decision in Lyster v. Dolland, because J - Slewart - 
 acts of parliament, and acts of our legislature, apply only to 
 matters of law, unless their extent be declared. Even the 
 statutes of bankrupts do not affect an equity of redemption ;f j- This is a mis- 
 for, after the conveyance of the bankrupt's estate by the J r e j he ^/]"/I 
 commissioners to his assignees, he still may redeem. If an JJ^J,^* 
 execution will attach on it, whether the mortgagor be in jt ** w^_ 
 possession or out of possession, is immaterial; and yet it is iiem.mou passes 
 
 by the com..us- 
 
 conceded if the latter be the case, it cannot be touched. But signers' 
 
 . . , , .. , , merit. Vt'.iule- 
 
 allowing him in possession, a sale by the sherm could con- *.>,. v . i)es- 
 
 vey no title to be enforced at law ; for in an ejectment against {ST^J^^JJ 
 
 the mortgagor, as he would be no party to the deed under * cl > sec - l2 - 
 
 which the plaintiff would claim, he could not be estopped 
 
 from showing a paramount title in the mortgagee ; and in 
 
 ejectment you must recover by the strength of your own, not 
 
 the weakness of your adversary's title. A sale by the mort- 
 
 gagor of his interest in the redemption, for it is not an estate, 
 
 is merely in the nature of a contract to be perfected in equi- 
 
 ty. We therefore contend the sale was void in itself, for 
 
 so completely is the legal estate in the mortgagee, that he 
 
 has a right to distrain for rent arrear, Moss v. Gattimore, 
 
 Doug. 279. and this even if due on a lease made prior to the 
 
 mortgage. In this very case, too, the interest of the mort- 
 
 gagor is in a Lgal sense reduced even below that of a tenant 
 
 at will. 
 
 *SPENCER, J. Two questions have been raised for the # 65 
 
 determination of the court: 1. Whether the appellants, who 
 are the heirs of Sarah, who was the wife of Henry Wisucr^ 
 were creditors under the marriage contract, so that, in 
 equity, that contract bound the premises in question to pay 
 those demands, after paying the mortgage given to Beck- 
 man ? 2. Whether an equity of redemption could be seized
 
 65 CASES IN ERROR IN THE 
 
 ALBANY, and sold by virtue of an execution at law ? It will not be 
 
 1804. . . 
 
 * _, -^ ' expected, that any opinion will be pronounced on the first 
 
 Tin mas Waters question. It appears not to have been insisted on in the 
 
 and others * 
 
 v - court of chancery ; and although the appellants' counsel 
 
 J. Stewart. .. . 
 
 would have had a right to argue it in this court, still they 
 
 have not attempted it. Of course it will, as respects my- 
 self, be laid out of the case. The decision of the second 
 question will require an attentive consideration of our own 
 municipal laws, vviih such aid in the construction of them, 
 as we may draw by analogical reasoning from the British 
 authorities ; for 1 take it to be well settled, that in England 
 there cannot be a sale of an equity of redemption upon a 
 mortgage for a term of years. It perhaps may admit of 
 doubt, whether an elegit or levari facias cannot there be 
 served and executed upon land mortgaged in fee, whilst 
 the mortgagor is in possession, and when his right consists 
 of an equity of redemption only. That it was the uniform 
 practice, under the colonial government, to sell under a 
 fi. fa. all kinds of interests which the debtor had in lands, 
 including equities of redemption, has been admitted. That 
 this practice continued until the year 1787, has been also 
 admitted. And though the practice cannot legalize a pro- 
 cedure unauthorized or forbidden by the law, yet, in cases 
 admitting of doubt, it may, and ought to be regarded, in 
 expounding statutory provisions, in relation to the same 
 subject. By the statute of the 19th of March, 1787, it is 
 enacted, " that all and singular the lands, tenements, and 
 real estate, of every debtor shall be, and hereby are, made 
 liable to be sold on execution," &c. This statute was 
 re-enacted among the revised laws, in 1801. The extent 
 and legal operation of the term real estate, will, in a great 
 measure, decide the question. Courts of equity and courts 
 of law undoubtedly regard the rights of a mortgagor and 
 rr ortgagee, in a different manner. In the former, the land 
 is considered as 2 pledge for the debt secured, and the 
 mortgagor is considered the real owner ; in the latter, the 
 
 * 66 If gl estate, to some ^purposes, is considered to be in the
 
 STATE OF NEW-YORK. 66 
 
 mortgagee, from the moment of the execution of the mort- ALBANY, 
 gage, liable to be defeated by the performance of the con- v ^_^' "L, 
 dition, to wit, the payment of the money. I<a other re- Thumbs \v Hiers 
 spects, the courts of law follow the notions of a court of R '^ " 
 equity, and consider the mortgagee as holding the mort- 
 gage as a mere security for the money due. Thus it is, 
 that at law, on the death of the mortgagee, the money due 
 is considered as personal assets in the hands of executors 
 or administrators. So, too, on the death of the mortgagor, 
 his right to the mortgaged property, if he originally had a 
 fee, and the mortgage was in fee, will descend to his heirs, 2 Burr. ?7fi. 
 and not to his personal representatives. An equity of re- 
 demption may also be entailed ; whereas, if it was con- 
 sidered a chattel, it could not be, nor could it, if consider- 
 ed as a mere right. By a devise of all lands, tenements, and l ^ tk - G05 - 
 hereditaments, a mortgage in fee will not pass, unless the 
 equity of redemption be foreclosed. Again, a husband 
 may be tenant by the curtesy of an equity of redemption. 
 To perfect this right, four things are necessary ; marriage, 
 issue, death of the wife, and seisin in fact. And, as to the ibid 60. 
 latter requisite, it is laid down, that an equity of redemp- 
 tion was not to be considered as a mere right only, but 
 must be taken to be such an estate whereof there might be 
 a seisin. From all these considerations, it appears to me, 
 that a mortgagor's right in an equity of redemption, is to 
 be considered as comprehended within the broad expression 
 of " real estate." I am the more confirmed in this opinion, 
 from the general and almost universal idea and practice 
 which has prevailed for a series of years, as well as from 
 the legislative declaration, that a mortgagor in possession 
 is a freeholder, within the meaning of the constitution, and 
 as such entitled to a vote. It has, however, been said by 
 the appellants' counsel, that the form of the execution re- 
 quires a legal seisin, and that a mortgagor cannot be legal- 
 ly seised. This exception has already, in some measure, 
 been considered. There are two answers to it : First, The 
 form of the execution ought not to control the declared in-
 
 66 CASES IN ERROR IN THE 
 
 ALBANY, tent of the legislature, in rendering every species of real 
 
 \. ^, _^j estate liable to sale ; and on no sound construction can this 
 
 Thorns ' v.uers exposition be admitted. Second. When a statute speaks of 
 
 ami Others . . -11 i 11 ,. 1 1 
 
 v. a seisin, an equitable seism may be as well intended as a 
 
 legal one ; and the term is applicable to both. I can, there- 
 * of fore, *perceive no substantial objection to the sale of an 
 
 equity of redemption, under an execution at law. Difii- 
 cui-ies have been started, in relation to the provision, giv- 
 ing remedy to purchasers evicted for want of title in the 
 person against whom the execution issued ; and it is said, 
 that the purchaser can immediately have this remedy, where 
 an equity of redemption only has been sold. If this posi- 
 tion was well founded, it would only prove that the legis- 
 lature had not foreseen all the cases which might occur un- 
 der that provision ; but it certainly proves nothing as to the 
 right to sell an equity of redemption. I do not, however, 
 perceive the difficulties which have been pointed out, in 
 the same light the appellants' counsel have. The authori- 
 ty given to the supreme court, after suing out the original, 
 and stating the grievance, is, to hear the complaint, and 
 do justice to the parties. Surely it would be attended with 
 no difficulty to decide, whether the equity of redemption 
 sold, was encumbered beyond the amount stated, at the 
 time of the sale ; or, whether the purchaser was, in judg- 
 ment of law, evicted of the equity of redemption he had 
 purchased. Arguments ab inconvenient! have been sug- 
 gested: there can scarcely exist a case, however well set- 
 tled, where such arguments cannot he urged ; they prove 
 nothing, and are to be listened to only in very doubtful 
 cases. In the present case, there would be no more diffi- 
 culty nor inconvenience than exists every day, where there 
 are several judgments, and the senior judgment creditor is 
 disinclined to a sale. On the whole, I am for affirming the 
 chancellor's decree : but as the present question has never 
 before occurred in our courts, except in one instance, where 
 no decision was made, I do not think that it would be dis=
 
 STATE OF NEW-YORK. & 
 
 *reet to impose a mulct. The respondent ought to have ALBANY, 
 his costs only. >** 
 
 Thomas Waters 
 
 l.ll lid o 
 
 KENT, J. The right of redemption was contended for ^ j ; 
 
 in the court below, and again in this court, on two grounds : ^ 
 
 1st. That the marriage contract bound in equity the pre- 
 mises in question, to pay the money that Henry Wisner had 
 covenanted to pay ; and that the same belonged to the ap- 
 pellant and the other children of Sarah Waters, who were 
 creditors under that contract. 2dly. That an equiiy of re- 
 demption cannot be seized and sold by virtue of an execution 
 at law ; and, consequently, that the same still exists in the 
 appellant Waters, as a purchaser under the devisees of Wis- 
 ner. I do not ^perceive that there is any basis for the first * 68 
 doctrine. The land in question had no connexion what- 
 ever with the subject matter of the contract. There is no 
 instance where an equitable lien has been carried to such 
 an extent. The consideration of the contract did not arise 
 from the land ; and there is no equity that this particular 
 land should stand charged with the fulfilment of the con- 
 tract, when there was no agreement to that effect, and 
 especially as against a creditor or a purchaser, without 
 notice of the contract. The only real question then in this 
 case is, whether an equity of redemption can be sold under 
 an execution at law? This is a point of importance and 
 difficulty ; and although I cannot arrive at any conclusion 
 altogether free from embarrassment, I am inclined to the 
 opinion, that, under the act of our legislature, an equity of 
 redemption can be sold at law ; and, consequently, that the 
 decree is correct, and ought to be affirmed. I admit, that 
 under the English law, an equity of redemption cannot be 
 sold by process at law ; and yet their decisions have ap- 
 proached pretty nearly to the same thing. According to 
 strict technical form and language, a mortgage m fee 
 is, at law, a conveyance of the estate, and differs from an 
 absolute sale only in respect to the equity of redemption, 
 is a mere equitable interest. As far as concerns the
 
 68 CASES IN ERROR IN THE 
 
 ALBANY, rights of the mortgagee, these strict formal ideas are fully 
 t_j^ '_^i enforced. Hence a mortgagor in possession is held to be 
 Thomas Waters like a tenant at will : he receives the rent by a tacit agree- 
 ment ; but the legal title to the rent is in the mortgagee, 
 who may put himself in possession of it, and turn out the 
 Cro. Juc. f)59. mortgagor whenever he pleases. The mortgagor, in such 
 
 Keech v. Hull, 111-11 
 
 Doug.w. Moss a case, would not be entitled even to a notice to quit, nor 
 y &ov? U '2J 01 e> to rea P tne embkments as other tenants at will are, because 
 all are liable to the debt. But when the mortgagee's rights 
 are not in question,, a mortgagor in possession, and before 
 foreclosure, is a totally distinct character. He is regarded 
 as the owner of the land, and the mortgage is treated as a 
 1 Vent. 82. Poto. mere encumbrance. He may levy a fine, and thereby bar 
 U3 1 26* 3 7 J3 'fif all the world, except the mortgagee, who is exempted from 
 E. 88 to 98. its operation by the nature of the contract. He may suffer 
 a common recovery, or otherwise aliene the land. It de- 
 scends to his heirs as real estate. It is devisable as such. 
 Po-w. on Mart. These are all marks of ownership, and go to show that 
 " a mortgage, until foreclosure, is now considered as a 
 * 69 ^-personal engagement only, in which the land is merely a 
 
 pledge for the money, and remains in the mortgagor to 
 every purpose, except that of securing the loan." It has 
 accordingly been frequently observed by the. judges in the 
 Dowr- 632. By court of K. B. that a mortgagee, notwithstanding the form of 
 'fijtl^Rex^'xi ^e instrument, has but a chattel interest, and the mortgage 
 Michael ^** i s only a security; that it was an affront to common sense 
 117. 2 Jtnrr. to sav t he mortgagor is not the real owner; that the law re- 
 
 978, 079. Eaton \ . . . , , . , , ... 
 
 v, /agues, Douf. cognises his interest, and has a right to the possession till 
 the mortgagee brings his ejectment ; that neither courts of 
 law nor equity lose sight of what the parties intended, and 
 will not look to the mere form of the conveyance, but will 
 consider what the parties really nuant by it ; that the mort- 
 gagor in possession is owner to all the world, and the estate 
 of the mortgagee a mere chattel interest, the same as the 
 money due by the mortgage; that it accordingly goes to his 
 executors, ami is devisable in the same loose manner as 
 other chattels j that the assignment of the debt, or even for-
 
 STATE OF NEW-YORK. 6.9 
 
 giving it, and that too by parol, draws the land after it, as a ALBANY, 
 consequence. These different and apparently contradictory ^.^^j 
 lights in which the subject is viewed, arise trom this circum- Thomas Waters 
 
 , r i and otiiers 
 
 stance that, in the one case, the courts speak ot the mort- v 
 
 gage in reference to the rights of the mortgagee ; and, in J- Stewart. 
 the other case, as it respects all the world, except the mort- 
 gagee. In equity, the mortgagor has been uniformly re- 
 garded as the legal owner ; and the courts of law have lat- 
 terly, in many respects, adopted the more rational ideas of 
 chancery on this subjtct. If the mortgagor is to be deemed 
 the owner of the land, as respects his own acts, and as re- 
 spects the world, subject only to the lien of the mortgagee, 
 it is neither unreasonable nor improper that courts of law, 
 at the instance of other creditors, should treat the land as 
 his, under the same limitation. There is no more inconve- 
 nience in subjecting the land to execution, because there is 
 a mortgage upon it, than there is where a prior judgment 
 has bound it. The vendee, in both cases, will purchase 
 subject to the lien ; and he can calculate the value, deduct- 
 ing the encumbrance, as correctly in the one case as in the 
 other. The difficulties suggested on the subject, are not 
 found to exist in practice. The English courts have gone 
 so far as to consider the equity of redemption of a mort- 
 gage of a term, as bound by an execution *at law in the like * 79 
 manner as if it was the term itself. A judgment creditor is 
 required to take out execution at law, m order to create a 
 Hen upon an equity of redemption of a term, before he is 
 entitled to go into chancery to redeem. The statute of 3 Jttk. 200. 2$ 
 
 , , , c ,. it Car. 11. adopted, 
 
 frauds also makt-s lands, in the hands of a trustee, liable to j Jtev. Lavs,&&. 
 sale on an execution against the cestui que trust; but this is 
 considered as applicable only to a strict technical trust, and 
 no case has gone so far as to allow an equity of redemption 
 to be sold at law. This seems, however, to be implied in Bunl. 34- 
 the remark, that a tenant, b> the elegit, can redeem an equity 
 of redemption ; for, to be a tenant by the elegit^ he must 
 have been put into possession by the sheriff. But the ques- 
 tion was finally settled in 1781. An equity of redemption
 
 un. 431. S. C. 
 
 70 CASES IN ERROR IN THE 
 
 ALBANY, was sold on execution ; and on a bill to redeem, it was con- 
 
 i^/^ly tended, on behalf of the purchaser, that an equitable imtrest 
 
 Thomas Waters might be taken in execution ; and that the sheriff's sale was 
 
 v. the same as the conveyance of it. The Lord Chancellor, 
 
 J. Stewart. ,, . . , , 
 
 ___ however, after some hesitation, set aside the sale, on the 
 Jester v. Doi- ground, that an equity of redemption was not liable to be 
 
 land, 3 Bro. Ch. b 
 
 Cas. 478. i Yes. taken in execution under the statute of frauds ; although he 
 
 . C. . . . . , . 
 
 Ken- admitted, that under that statute the sheriff might extend 
 an equitable interest, or in other words, a chose in action. 
 
 Cro. Eliz. 742. Chases in action are, in other instances, liable to execution 
 at law. Long before the statute of frauds, it was held, that 
 the sheriff, on an eleg'it, might extend a rent-charge, although 
 he could not a rent-seek ; which, being wholly detached from 
 any right in, or power over, the land, could not be delivered 
 as liberum tenementum. The sale of an equity, with us, 
 must then depend upon the construction of our statute. I 
 have taken this slight view of the English law to show, that 
 if our act be an innovation in this instance on the previous 
 law, there is nothing in it that ought to alarm us, as incon- 
 gruous or unreasonable ; for it is certainly agreeable to the 
 general bent and spirit of the more modern decisions. If I 
 am rightly informed, we have in this state a long and esta- 
 blished practice in favour of such sales. This usage is of it- 
 self deserving of considerable weight. The practice of sell- 
 ing equities of redemption, with us, is supposed to be at 
 least as ancient as the statute of 5 Geo. II. c. 7. in the year 
 1732. That statute made lands, hereditaments, and real 
 estates, within the English colonies, chargeable with debts, 
 
 * 71 and subject to like remedy and process in *any court of law 
 
 or equity, by seizing and selling as personal estates. The 
 statute uses the broad expressions of lands, hereditaments, 
 and real estates. They were to be treated exactly as personal 
 property ; and it became usual to regard lands and real 
 estates as assets in the hands of executors, and to cause 
 them to be sold on execution against executors. This prac- 
 
 Lmvs / .v .r. tice continued down to the year 1786, when it was abolished. 
 
 !l 28r 7M ' '' 1 Equities of redemption continued to be sold to the time of
 
 STATE OF NEW-YORK. 
 
 the first revision of our statute law, when the sale of lands ALBANY, 
 on execution was particularly regulated ; and if it had been 
 intended to have abolished that practice, it is probable the 
 
 act would have contained some explicit declaration on tl 
 
 subject, or at least that it would have used precise and __ -- _ 
 
 definite terms, that could not mislead, or be misunder- 
 
 stood. But the act of 1787 adopted the same loose latit 
 
 dinary terms as those in the statute ofGeo. II. It declares, 
 
 that all and singular the- lands, tenements, and real estate 
 
 of every debtor, shall be liable to be sold upon execution, to 
 
 be issued by virtue of a judgment in any court of record. 
 
 This whole provision is therefore made by the very 
 
 terms of it, exclusively applicable to a court of law; and 
 
 whatever interests are included within the description of 
 
 real estate, they are equally included within an exea 
 
 lion at law. And there can be no doubt, I think, but 
 
 that an equity of redemption will be comprehended in 
 
 the expression'. The form of the execution prescribed by 
 
 the act, ought not to be construed to control this sub- 
 
 stantive part of the statute ; and, if they cannot be recon- 
 
 .ciled, the general direction, from the nature of the two pro- 
 
 visions, ought to prevail. We have seen, from a case I 
 
 have already mentioned, that a liberum tencmentum, or free 
 
 hold, will include a rent-charge, although the fee of the 
 
 land resides elsewhere ; and the word land, in the body ot 
 
 the execution, will apply to the mortgagor's estate, espe- 
 
 cially as the wordwwin, in a statute, is frequently construed 
 
 to applv to an equitable, as well as to a strict legal seism. 
 
 The application is always according to the subject matter *.,. Cu 
 
 and to give the statute complete effect. There were several 
 
 objections strongly urged to this construction of the act. 
 
 It was said, that the remedial provision in the other parti 
 
 of the act, in case of eviction of the purchaser, will not ap- 
 
 plv to the case of a purchaser of an equity of redemption. 
 
 I have not been able to "discern why the purchaser of an 
 
 equity of redemption cannot, in the first place, obtain pos- 
 
 session of the land, as against the mortgagor or his ass.gns j
 
 CASES IN ERROR IN THE 
 
 ALBANY, and why he may not afterwards be evicted. The judgment 
 
 v._- -*_ J i s undoubtedly a lien on the land, notwithstanding the 
 
 Thomas Waters mortgage. We have seen, that where a term for years is 
 
 and others . 
 
 v. mortgaged, the equity of redemption is bound by execution 
 
 J. Slewnrt- ,-, T i 
 
 m like manner, as if the term had not been mortgaged ; 
 
 and, except where the mortgagee himself is a party, I 
 should doubt whether the mortgagor would be permitted 
 to set up the mortgage in opposition to the purchaser. 
 Where the mortgagee's rights are not in question, the 
 mortgagor is regarded as die owner. A court surely would 
 not permit a jurvman to excuse himself, by denying he was 
 a freeholder, because there was a mortgage on his land. A 
 mortgagor in possession, and before fpreclosure, is compe- 
 tent to be a tenant to the prcecipe; for he can levy a fine, or 
 suffer a recovery. He is therefore a tertenant ; and, in the 
 case stated at the bar, I should incline to think the judg- 
 ment creditor might have a scire facias against the heir or 
 assignee of the mortgagor. But it is not essential to give 
 any definitive opinion on these points ; nor do I wish to be 
 understood to do so, for, admitting that the remedies to 
 the purchaser of an equity of redemption are not as com- 
 plete as they are in other cases, this will not limit the opera- 
 lion of the positive directions and powers in the act to 
 which I have alluded. It would only be to be regretted, 
 that the remedial part of the act was not extensive enough ; 
 and it might lead to legislative amendment. The creditor 
 in England was allowed his extent a long time before the 
 statute provided a remedy for him on eviction. And per- 
 haps similar difficulties might be started, as to the power of 
 a court of law, to give full effect to the purchase of a trust 
 estate, under the statute of frauds ; but still the sale there- 
 of, on execution, is not to be disputed. The selling of real 
 estates, and equities of redemption on execution, is peculiar 
 to us ; and it would not be surprising, if some of the tech- 
 nical rules of the common law might meet with difficulty 
 in their application to the case. If the purchaser can take 
 possession as against the mortgagor, when in possession }
 
 STATE OF NEW- YORK. ?2 
 
 he may defend himself against an ejectment by the mort- ALBANY, 
 gagee, by bringing the debt into court. In this way he v^l^X*/ 
 may protect himself completely at law. The doctrine of Thomas Waters 
 
 * * . and others 
 
 ^equitable assets (and which was much pressed upon us in v. 
 
 the argument) is not, however, affected by allowing the sale of __ ' | . .. ' ir ... 
 an equity of redemption. It is settled, that an equity of re- 
 demption is not equitable assets, as against judgment credit- 
 ors. Arguments drawn from inconvenience are entitled 
 to much consideration, in cases of doubtful construction ; 
 but, in the present case, I am of opinion they operate in fa- 
 vour of the decree. A very considerable part of the lands 
 in this state are under mortgage to the loan-offices, and to 
 individuals : it is likely they will continue so ; and if judg- 
 ment creditors are under a necessity in every case of resort- 
 ing to chancery, for leave to sell the land of the debtor, it 
 would create double suits and double expense, and would 
 lead to much inconvenience and delay. After, therefore, 
 the best attention I have been able to bestow upon this nice 
 and important legal question, and which was argued by 
 counsel in a manner that did much credit to their research- 
 es and abilities, I am of opinion the decree below ought to 
 be affirmed. The mortgagor was in possession when the 
 equity was sold, and that formed a material ingredient in 
 the case. This opinion, therefore, is not intended to apply 
 to the case of a mortgagee in possession.
 
 73 CASES IN ERROR IN THE 
 
 John G. Leake and Bernardus 
 Swartwout, junior, 
 
 And Melancton L. Woolsey, Natha- 1 
 niel Platt, Robert Cochran, Jonas 
 Platt, Zephaniah Platt, John Bailey, ^Respondents. 
 James Kent, William Bailey, James I 
 Bailey, and George Ker, J 
 
 * 74 
 
 If one of many ,-.,, 
 
 joint mortgagors ON appeal irom chancery, the case was this : The re- 
 rest SI to a third spondents, excepting Ker, had purchased of one CoR 
 accepted ^yVe McGregor, a large tract of land in the county of Clinton, for 
 "bSio e n o"f the sum of 10,2417. 10*. Of this 2,0007. only being paid in 
 the assignor, and cas h the residue was secured by a bond and mortgage from 
 
 an endorsement 
 
 be made on the the purchasers, dated on the 24-th of February, 1 796, paya- 
 
 mortgage and 
 
 bond, that such ble in four instalments ; three of 2,000/. and the fourth of 
 
 third person is _ . ,, _, ... 
 
 accepted in lieu 2,2417. 10s. the first on the 1st of June, 1798, without mte- 
 
 assignoSofds^n rest ; the rest on the first days of June, 1 799, 1800, and 1 801 , 
 
 looke<no for d his w ^^ i nterest ' At or about the time of executing this bond 
 
 proportion ac- anc j mortgage, Ker, "*vvishingto buy out the interest of Cock- 
 
 cordingly, the D 
 
 land will be ex- ran, agreed with McGregor and Cochran, to be substituted 
 
 onerated from , . . . 
 
 the proportion in the place of Cochran with respect to his interest in the 
 on his 'TsslgTee lands, and also with respect to his responsibility for the 
 f money secured to be paid by the mortgage. In considera- 
 so substituted, Ker agreed to give Cochran 
 
 gagee ami the as- iQO/. for his bargain, and to repay him his proportion of the 
 
 signee, in which 
 
 the assignee is 2.OOO/. cash, paid to M'-Gre?or, amounting to the sum of 200/. 
 
 debited for the Ajn 
 
 amount of the In consequence of these arrangements, McGregor lent to 
 
 1 it appear Ker the 100/. agreed by him to be paid to Cochran, and re- 
 
 een^auV turned to CfacAraw the 2007. received as his proportion of the 
 ted, notwith- 2,0007. paid down. A memorandum of the purpose with 
 
 standing such 
 
 satisfaction be wn ' ic h these transactions were had, was made on the bond 
 
 under a settle- 
 
 nient made after and mortgage in these words : " I acknowledge and accept 
 ri^lnai "bonds of " of George Ker, Esq. in lieu of the share which Robert Coch- 
 
 tiic ns:ignee, by 
 
 civiiijr other secur'ties, and at the time of giving the same, the assignee have notice ot an 
 assignment of the bond and mortgage by the mortgagor, made between the first and second 
 scltli mijnt*.
 
 STATE OF NEW-YORK. 7* 
 
 ran holds in the within bond, and look to said Ker for his ALBANY, 
 proportions accordingly. Newark, 24th of January, ^J^^ 
 1796." Cochran, on this, by the direction of Ker, convey- John G.Leake 
 ed his interest in the lands purchased of McGregor, consist- B Sw rtwout 
 ing of one tenth, to Mrs. Ker. On the 25th of June, 1796, M L ^ olgey 
 Coll McGregor settled an account with Ker, on the balance and others. 
 of which there appeared due from Ker 16,334/. In this ac- 
 count McGregor debited Ker with 1,100/. for 2,OOO acres of 
 land held with Plait and others. In satisfaction of the ba- 
 lance thus struck, and in pursuance of McGregor's desire, Ktr 
 gave his bond, (3,750/. of which had been paid to one William 
 MaxweUJ and for the residue the joint bond of himself and 
 wile, payable one year after date, with interest at six per 
 cent, to Isabella S. Fotheringham, between whom and 
 McGregor a treaty of marriage at that time subsisted. Within 
 two months after settling the above account in the ante- 
 cedent manner, it appeared on a more accurate investiga- 
 tion, that some errors had crept in, which were by consent 
 rectified, and by an endorsement on the last mentioned bond, 
 the amount was reduced to 1O,507/. 0.. &/. On the 10th of 
 November, 1796, the bond and mortgage from the respond- 
 ents to MGrcgor, were assigned to him by the appellant 
 Swartwout, in part payment for an estate. Of this assign- 
 ment Ker had notice about the last of November, 1796. 
 Swartwout owing a large debt to the other appellant Leake, 
 in order to secure its payment, assigned to him the bond 
 and mortgage from the respondents. From an answer of 
 , the respondent *Ker to a bill filed against him and others by 
 the assignees of Coll McGregor, it appeared that in January, 
 1798, Coll MGregor, (between whom and Miss Fothering- 
 ham a coolness then subsisted,) demanded of Ker the bond 
 which he and his wife had executed to her. In consequence 
 of this, Ker obtained the bond from Miss Fotheringham, 
 and carried it to McGregor, \n whose presence it was, with 
 his consent, cancelled and burnt. Shortly after this transac- 
 tion, an account was again stated between MGregor and Ker 
 on which the latter was found indebted to the former 1O.507J,
 
 CASES IN ERROR IN THE 
 
 AL iiB04 NY ' exclusi ve of a loan of g5,OOO. In satisfaction of these sums, 
 \^-^/*^J Ker, with the concurrence of M'-Grepor, destroyed a decla- 
 
 Tohn G I rake c r 
 
 B. Swartwout su p> s pat ent. After this, the settlement thus made, was, at' 
 M. L. Wooisey the request of McGregor, waived by Ker, who having a bond 
 
 and others. . _ 
 
 _^ ancl mortgage from one Hamilton and others to himself, as- 
 signed them over to McGregor in full of all demands. 
 McGregor died since, insolvent. The bill below was against 
 the respondents for payment of the debt of 8,241 /. 10*. 
 with interest, or that they might be foreclosed. The Chancel- 
 lor ordered that Cochrmts one-tenth should be considered as 
 paid, and that it should be referred to the master to re- 
 port, after deducting his one-tenth, what was due on the 
 mortgage ; and that the same should be paid by the original 
 obligors. For this decree his Honor thus assigned his rea- 
 sons: 
 
 Mr. PresidentIn my opinion, the mortgage and bond, 
 being the joint act of all the parties, could not, as far as re- 
 spected their respective interests, receive a new modifica- 
 tion without the consent of all. It was, however, compe- 
 tent to McGregor to receive the portions of one or more of 
 the obligors, and to credit the amount paid, which, though 
 placed to the account of all the obligors as so much paid of 
 the debt, generally, would, if the whole proportion of the per- 
 son paying was satisfied, operate to discharge him in any 
 action for contribution between themselves. The operation 
 of a release to one of the parties to a joint contract, to dis- 
 charge all, is stricti juris ; it is on the ground of a presum- 
 ed satisfaction, and severance of contract which it implies. 
 But though this is the doctrine of strict law, the same degree 
 of rigour is not extended to devices calculated to produce the 
 ^ Ld. Itaym. same effect in a more circuitous mode. So a covenant not to 
 #' 76 sue cannot, it has *been held, be taken advantage of at law, by 
 
 tvay of release. It is evidently in the power of a person hold- 
 ing a joint contract, so to direct a suit on it, as to charge only 
 one or more of the joint contractors, and is every day's prac-
 
 STATE OF NEW-YORK. 76 
 
 tice at law ; and the only remedy of the persons against 
 whom the recovery is had, is to enforce a contribution from 
 
 their contractors, not affected by the recovery. If however John G. Leake 
 
 . . an( i 
 
 those have already satisfied their full proportions, no injury B.Surutwotrt 
 
 having arisen to the persons subject to such recovery, there M. L. Woohe 
 
 i i i . v i and others. 
 
 is no point on which they can rest their claim to con- 
 tribution. If this may be done tacitly, I can discover no 
 good reason why it should not be the legal object of a cove- 
 nant indirectly to avoid a process for contribution. If the 
 endorsement in this case had acknowledged the receipt of a 
 sum of money equal in amount to Cochraii's one-tenth of the 
 debt, it would not be deemed prejudicial to the interests of 
 the co-obligors ; and whether it was actually paid in money, 
 or agreed to be credited, on an arrangement between them, 
 to substitute some other object existing in property on con- 
 tract, could be of no consequence to any others than those, 
 who were the parties to the transaction making such substi- 
 tution. Assuming it then as legal, as well as equitable, in 
 certain cases to permit the person complying with what is 
 deemed his full proportion of duty on his contract, to be 
 virtualy, though not formally, discharged by the agency of 
 the person with whom the joint contract is made, the next 
 question is, What was the operation of the agreement in 
 this instance ? The endorsement, both in the bond and 
 mortgage, is, " I acknowledge and accept of George Ker, in 
 " lieu of the share which Robert Cochran holds in the with- 
 *' in bond." This part of the agreement is inaccurate in its 
 language : it speaks of acknowledging and accepting of Ker, 
 in lieu of Cochrarfs share, which it is said he holds in the 
 within bond; but however inapplicable the term hold may 
 be, as descriptive of a duty, the former part of the sentence 
 distinguishes, not the person of Ker, as instead of that of 
 Cochran, but with precision, the acceptance of the person o 
 Ker, in lieu of the share of Cochran ; this is, in my opinion, 
 a strong mark of the intent. There were ten obligors, ancl 
 from the silence of the securities as to the inequality of inte- 
 rest, or obligation in discharge of the debt, I think it is a legal
 
 76 CASES IN ERROR IN THE 
 
 ALB AJSTY, inference, that all were equally to contribute to its discharge ; 
 
 \^_ ^_, *there is no allegation of such inequality, and all the an- 
 
 Jolm G. Leake sw ers concur in representing the debt as an equal one on all 
 
 and 
 
 B. Swartwout the parties. If this is admitted, the share of Cochran was 
 M. L. Wooisey susceptible of exact liquidation by a simple arithmetical 
 01 IMS. p roc ess, which only was necessary to reduce it to certainty. 
 %. HH If so, the share of Cochran, in language, is as little subject 
 
 to doubt, as if the parties had expressed themselves in the 
 more definite terms, of the precise number of dollars in- 
 tended to be considered as satisfied ; and, whether the ac- 
 knowledgment was, that he had received a certain sum, or 
 that he had made an arrangement to credit a certain sum, 
 in consequence of Ker's responsibility to him, does not, in 
 my opinion, materially vary the situation of the parties. 
 In both cases, the other parties might be called upon to 
 adjust the difference of payment by contribution, if in the 
 event of a suit on the joint contract, an additional sum 
 should be exacted from him, beyond his proportion. By 
 way of fixing this intent more determinately, it is added, 
 that he looks to said Ker for his proportion accordingly. 
 Tins looking to Ker for his proportion of Cochrari's, seems 
 to be in pursuance of the same idea ; not that he looked to 
 Ker as a substitute in the contract for Cochran, but to Ker 
 for the proportion of Cochran. Indeed, it can scarcely be 
 presumed, that the parties could have supposed a complete 
 substitution legally practicable ; it could not have entered 
 into their imagination, that Ker could be considered as a 
 co-obligor with the others ; and if not, the mortgage, be- 
 ing merely a collateral security for its discharge, must be 
 considered as invalid to the amount of the satisfaction on 
 the bond. I do not, however, mean to assert, that it was 
 not in the power of the parties so to modify this transac- 
 tion, as to retain the lien on the lands, and virtually to dis- 
 charge the person of Cochran ; yet that if this was done by 
 way of release, it would, in legal operation, destroy the 
 whole instrument, cannot be urged with effect against the 
 made adopted by the parties. The complainants received
 
 STATE OF NEW-YORK. 77 
 
 the bond and mortgage with the endorsement to them, cal- ALBANY, 
 culated to disclose the nature of this transaction. What- v^^,^ 
 ever might be the consideration or inducement as to Ker, John ^Leake 
 the contract made with Cochran, and his parting with his B . Swtwwrt 
 share of the land to KeSs wife, was a sufficient considera- M . L . woohey 
 tion as to him; and whatever complexion the business _^_^^_ 
 might assume, as between McGregor and Ker, the *right * 78 
 
 of creditors not being affected by it, it could have no re- 
 trospective effect, so as to avoid the contract made with 
 Cochran. As between Cochran and McGregor it was con- 
 clusive, and it does not lie in the mouth of the complain- 
 ants, now representing McGregor, to set up subsequent 
 transactions, to which Cochran was a stranger, to impeach 
 a bargain which he is interested in maintaining, nor ought 
 they to be permitted to charge the other mortgagors with a 
 sum of money, which the person from whom they derive 
 their rights has relinquished, as part of the money secu- 
 red by this mortgage. It cannot therefore be necessary to 
 trace the winding steps of McGregor, Ker, his wife, and 
 Miss Fotheringham, detailed in the answers of the latter in 
 another cause, which were used at the hearing ; for all 
 those felate to transactions subsequent to the agreement, m 
 consequence of which the endorsement was made, and can- 
 not possibly affect it. The letters of the several defendants 
 are conceived in general terms, and nothing is to be col- 
 lected from them prejudicial to their interests ; for the ex- 
 pressions in these letters would equally apply to half, or a 
 smaller portion of the money secured, if no more remained 
 unpaid ; -but a better reason is, that supposing Cochran's 
 share satisfied, no act of theirs, as against the other mort- 
 gagors, could place it in statu quo, nor could it possibly re- 
 place Cochran, as a party liable. And if not, it would cer- 
 tainly be very inequitable to compel them to pay his propor- 
 tion,' without a possibility of resorting to him for a con- 
 tribution. From this train of reasoning, I am of opinion 
 that Cochrarfs one-tenth must be considered as paid, and
 
 78 CASES IN ERROR IN THE 
 
 ALBANY, that it be referred toa master to report the sum due, re- 
 
 1804. ... , 
 
 t ^^ y jectmg the one-tenth. 
 
 Jolni G. Leakc 
 
 B. Swartwout Against this, the appellants contended, 1st. That \vhat- 
 
 M L Wooisey ever mi ght be the effect of the agreement between McGregor , 
 
 and others. Cochran, and Ker, upon the bond, at all events, the land 
 
 remained liable, as Ker took Cochrarfs conveyance, subject 
 
 to the mortgage. 2d. That the settlement with McGregor ', 
 
 by Ker, was fraudulent, and after notice of his assignment, 
 
 as was evident, 1st. From the non-production by McGregor 
 
 of the bond and mortgage, at the time of this pretended 
 
 settlement ; and was in itself a sufficient reason to presume 
 
 an assignment. 2d. From the known insolvency of 
 
 McGregor. 3d. That allowing the first settlement to have 
 
 been good, still, when the bond to Miss Fotheringham was 
 
 "* 79 given up and cancelled, it was *as if it had never been in 
 
 existence, and then the subsequent settlement was clearly 
 
 fraudulent, being after notice admitted. 
 
 On behalf of the respondents it was insisted, That the 
 words of the endorsement clearly exonerated the land from 
 Cochrarfs proportion, McGregor having thereby accepted 
 Ker as his debtor for that amount. That this was evident, 
 1st. From the account, in which Ker is charged 1,100/. for 
 the land held by him, with Plait and others. 2d. The mo- 
 ney due on the bond and mortgage was not payable till the 
 expiration of two, three, four, and five years, but on the 
 bond given by Ker it was due in one year. 3d. The re- 
 turn of the 200/. to Cochran, evinced a new transaction, in 
 which the original liability of Cochran was done away. 
 
 Hanson, for the appellants. It is contrary to reason, to 
 suppose landed security should be relinquished for per- 
 sonal. The intention of the parties, from the words of the 
 endorsement, was, that the person of Ker should be sub- 
 stituted for that of Cochran, but that the land should re- 
 main charged. The estate in it was vested in McGregor by
 
 STATE OF NFAV-YORK. 79 
 
 the mortgage, and it could not be devested, without a com- ALBANY, 
 
 pliance with the condition. It was impossible to effect this ^ ^ ^^/ 
 
 by the endorsement ; for, nothing short of payment is a J n Jjv** 1 
 
 performance of the condition. The estate of the mortga- B - ^-artwout 
 
 cee, on executing the deed, passt- s out of the mortgagor, M. L. Wnoisey 
 
 o . . and others. 
 
 and upon common law p.inciples, the mortgagee is seised 
 
 of the fee, defeasible by performance of the condition. 1 
 Pow. on Mort. 226. If then the estate was in McGregor 
 till performance of the condition, and that condition is now 
 unperformed, the estate thus in him passes to his assignee, 
 from whom we claim, and would be entitled, in an eject- 
 ment, to set up this our title. Co. Litt. 206 to 208. b. Till 
 a reconveyance,! the legal estate remained in the mortga- j gee mite . s p . 59, 
 gee and his assignees. But it is contended, that the set- 
 tlement made between Ker and McGregor, is equivalent to 
 a payment pro tanto, and conclusive on the appellants. We 
 insist, however, from the facts, that it appears Ker had 
 notice of the assignment by McGregor, and that any pay- 
 ment afterwards made by Ker was in his own wrong. In 
 order to affect with notice, it is not necessary that it should 
 be written.^ If the circumstances be such as ought to in- $ Whatever is 
 
 . c , . i i i i sufii;:ienl to put 
 
 duce an inference that an assignment had been made, it is the pat ., v Oll ' iu _ 
 sufficient. The absence of the bond and mortgage, on the S*8*2?J 
 
 *first pretended settlement, was equal to this. But on the -* tk - 48<J - And 
 
 it a mortgagee 
 
 second, when the first was cancelled, a new bor.cl and new be afiecte<i with 
 
 ... notice, his as- 
 
 modes of payment adopted, the notice is admitted. On signee will take 
 
 ^L. i subject to it. 
 
 this point, therefore, if on no other, we conceive the de- whaUcy \.irhui- 
 
 leijy I }'ern. 484. 
 
 cree must be reversed. < * 8O 
 
 Pendleton, contra. It is needless to say any thing on the 
 necessity of a reconveyance, to revest the estate of the 
 mortgagor. For what has been urged on that head, ap- 
 plies only to cases where there has been a forfeiture, and 
 the estate rendered absolute in the mortgagee. Here, 
 however, if the estate is discharged from the tenth of the 
 mortgage-money, it is by a payment made before forfeiture.
 
 80 CASES IN ERROR IN THE 
 
 ALB.-VXY, The first instalment on the bond was due in June, 1798. 
 v^L^'X^ The most disputed settlement by Ker, was in the January 
 John <;. Loake ante cedent. But the payment, as it in fact was, which 
 
 and ' ' 
 
 ]J. Swaru-oiit then took place, was not of the money due on the bond and 
 
 V. 
 
 M. I.. Wpoleey mortgage. That had been, as to Cochran and his substitute 
 
 ami OlK'l'S. r -i i II J cv -t Mnr 
 
 Ker, previously satisfied by the bonds in June, 1796, at 
 
 which time McGregor was owner of both bond and mort- 
 gage. The transaction which then took place was a com- 
 plete act ; and surely at that time he had a right to take 
 payment of his mortgage-money in any way he pleased. 
 He did then, on that day, as appears from the account in 
 his own hand-writing, receive, in a manner pointed out by 
 himself, payment of 1,1 OO/. from Ker, for the 2,OOO acres 
 of land, held by him with Platt and others, the very identi- 
 cal share of Cochran in the original purchase from M l Gre- 
 gor. The subsequent assignment to Srvartwout could 
 never defeat this payment, thus fairly and fully made. Af- 
 ter this settlement, so perfected and carried into execution, 
 whether the bond by which it was effected was destroyed, 
 or in whatever way satisfied, nothing which took place re- 
 lating to it could revive rights long previously extinguish- 
 ed, and that in favour of persons who then had none. By 
 the words of the endorsement, Ker was substituted for 
 Cochraifs portion in the bond ; for that portion the land 
 was only a security ; when, therefore, that portion was 
 paid by the bond to Maxwell, (which has been fully dis- 
 charged,) and the bond to Miss Pother ingham given for 
 the collective debt of Ker, the land was necessarily exo- 
 nerated. In the endorsement, McGregor says he looks 
 to Ker. This is a strong declaration that he does not 
 .look to the land. If so, it is a criterion on which the ex- 
 # 81 position *of the endorsement is to be made. Forinexpo- 
 
 Nmith\.Furk- sitions, the intent is the governing principle. 3 AtL 135.f 
 And that the intent should be to look to the person oLKer, 
 / is not so surprising, if we consider Ker 9 ! personal transac- 
 tions with McGregor then amounted to 16,000/. Besides,
 
 STATE OF NEW-YORK. 
 
 there was an inducement to accept Kefs personal security, ALU y\v, 
 
 c i; 
 
 and exonerate the land. It accelerated the pay men nve v^-^~^ 
 
 years. The rate of interest was altered from 7 to 6 per cent. ^ ' ; - akc 
 How then could land continue liable for a sum at seven per u. Swar 
 
 cent, when a bond was given for the same sum at six? It M. I.. 
 
 1111" 
 is plain, that to obtain payment at an early clay, tl 
 
 one per cent, was given up. To discharge land of a mort- 
 gage debt, any common parol declaration or discharge is suffi- 
 cient, 1 Pow. on Mort.187. The endorsement therefore is 
 adequate. Then, if the debt was discharged, the land fol- 
 lowed of course. Martin, ex dem. Wcston, v. Moivlin, 2 Burr. 
 979. On this principle the doctrine of notice will apply 
 most forcibly to the appellants. The endorsement on the 
 bond and mortgage purported an exoneration of ihe land, 
 and the personal substitution of Ktr. The assignees, there- 
 fore, of such bond and mortgage, received them after a lull 
 notice, written on the instruments. The subsequent pay- 
 ment of a prior personal substitution for the share of C-Jch- 
 ran, could not revive those rights, which that personal sub- 
 stitution, and the bonds thereon given, had extinguished. 
 
 Hamilton, in reply. It is on that subsequent payment we 
 think we have a right to rely. When it was made, Ktr had 
 full notice of the assignment to Swartwout. Instead of set- 
 tling, or paying as it is termed, he should have withheld, 
 till convinced that his payments would not prejudice the 
 rights he knew were transferred to Sivar-tuwit. Actuig 
 otherwise, evinced a spirit of favouritism. On the point of 
 substitution by the endorsement and conveyance, it must be 
 held, that when Ker took the estate and place of Coc.hr an, he 
 took them with all the liabilities they were under, when held 
 and occupied by him, into whose shoes he stepped. If the 
 payment of a proportion of the mortgage by Cochran^ would 
 not extinguish in McGregor the right to charge all the land 
 with the residue, it could not when made by Kci\ t!e;..nve 
 him of it. Therefore, allowing the substitution in the full- 
 est extern, swid the tota kxoneration of Cochran, that was no,
 
 81 CASES IN ERROR IN THE 
 
 discharge of the land. All that can be effected by the pay- 
 ment of Ker, is a diminution *of the charge on the land, not 
 John iTu-ike a diminution of the land charged. If, by his proportion 
 B. Svartwout continuing liable, he pays twice, that is a matter of contri- 
 M. L Wooisey bution between him and his coobligors, but nothing to us, 
 and others. wno rece j vc on ]y our original sum. At law, the endorse- 
 %. g~ mem could never operate to discharge the person of Cochran ; 
 
 in equity it might. But in equity it never would be con- 
 sidered as being a pro tanto discharge of the land from the 
 mortgage. Therefore, though equity, perhaps, would not 
 have allowed M'Gregor to proceed against the person of 
 Cochran, it would have permitted a foreclosure against 
 Coclira's share in the hands of Ker. If this would have 
 been endured in McGregor, certainly in his assignee. The 
 whole of the settlements relied on, are bonds for bonds, and 
 therefore no payments. The facts, however, warrant a pre- 
 sumption, that the bond to Miss Fotheringham was in con- 
 sideration of marriage, and as a portion ; when the marriage 
 did not take effect the consideration failed, and the money 
 intended to be secured to Miss Fotheringham became due 
 to McGregor, as his original property in the bond and mort- 
 gage. To pay money for that proportion of the bond and 
 mortgage afterwards to M'Gregor, was to make a payment 
 on that which Ker knew was assigned tp the respondent 
 Swartwouti It consequently was done in his own wrong, 
 and we have a right to look for the whole amount from the 
 persons bound, and all the land originally charged. 
 
 The majority of the court being of opinion with the Chan- 
 cellor, for the reasons he assigned, it was ordered that the 
 
 DECREE BE AFFIRMED. 
 
 SPENCER, J. contra. The questions arising in this cause, 
 are principally 1st. What is the legal effect of the endorse- 
 ment made on the bond and mortgage, given to Coll 
 McGregor by Robert Cochran and nine others, whereof Ker is 
 not one, in these words :" " I acknowledge and accept of
 
 STATE OF NEW-YORK. 
 
 George K?r, Esq. in lieu of the share which Robert Ccch- ALBANY, 
 
 ran h olds in the within bond, and look to said Ker for his v^^-^x 
 
 proportion accordingly. Ncw-Tork, Mh February, 1796." ^ 
 
 2d. Whether, from posterior transactions, the appellants have 
 
 lost their right to insist on the mortgage as a security, as M. L. Woohey 
 
 well for the nine-tenths, as for the one-tenth part of the 
 
 money thereby secured, and due from Cochran, provided 
 
 the above endorsement did not, in judgment of law, operate ^ 
 
 to discharge Cochrarfs *share due on the mortgage ? I shall 
 
 consider the first question independently of the alleged un- 
 
 derstanding of the parties. This, for three reasons ; 
 
 1st. Because this is not a controversy between the original 
 
 parties to that transaction, (MGregor and Ker^ but between 
 
 the assignee of the former and Ker. When this assignment 
 
 was made to Swartwout by McGregor, it was for the whole 
 
 sum expressed in the mortgage. The endorsement, to be 
 
 sure, was on it ; and by the true exposition of that endorse- 
 
 ment, was his interest and right acquired in it to be deter- 
 
 mined, without reference to any conception of the parties, 
 
 , 
 
 as to the operation of that endorsement. 2d. Because parol ' e \'; 
 evidence, substantially to vary or impugn an agreement in P^HJ* 
 writing, even as between the same parties, cannot be admit- - W 
 ted, much less between one of the parties and a third per- 
 son, who has acquired a right under such agreement. 
 Because, whatever McGregor might say in relation to his 
 understanding of the intent and operation of the endorse- 
 ment, ought not to be regarded ; he having, for a full and 
 valuable consideration, assigned the mortgage as due in toll ; 
 his subsequent declarations to the contrary, would evince 
 that he had been guilty of a fraud in that assignment, and 
 this would justly derogate from his testimony. If the rule, 
 that, in assignments of chases in action, the assignee takes 
 them subject to all the equity between the parties, does ob- 
 tain upon the assignment of a mortgage, and of which per- 
 haps there is doubt, still it cannot reach a case of this kind, 
 where the parties wholly relied on a written stipulation, and 
 must be bound by its construction. The endorsement will
 
 CASES IN ERROR IN THE 
 
 ALRANY, not admit of a literal construction. Cochran held no share 
 in the bond, but was held by it to the payment of the sum 
 ex P ressccl - McGregor accepted Ker in lieu of Cochran in 
 B. Swartwout the within bond, and was to look to him for his proportion 
 M. I,. Wooiscy accordingly. It is to be recollected, that the endorsement 
 
 and others. 1^.1 ^ L i i 
 
 was both.on the bond and mortgage in the same words ; and 
 
 it is to be presumed, because universally the case, that the 
 mortgage had reference to the bond ,- and no reason can be 
 assigned why, when the endorsement was made on the mort- 
 gage, Kcr should be accepted in lieu of Cochran, as to his 
 liability on the bond only, if the parties had intended that 
 M'-Gregor was to renounce the real security he held. The 
 expression of the one is the exclusion of the other, especially 
 when this endorsement is made on the mortgage, and re- 
 *' 84 fers *to a bond. If collateral facts, existing at the time of 
 
 the transaction, be resorted to, and if we ,are to imagine 
 McGregor actuated by his interests, these considerations 
 would unite in evincing that it could not have been his in- 
 tention to waive the security he had, but merely to substitute 
 Ker for Cochran, so far only as regarded personal respon- 
 sibility. But in making up my opinion on this point, I put 
 out of view' these circumstances, and look to the words of 
 the endorsement, as the only true indicia of the intention of the 
 parties. The agreement only extends to the bond, and I 
 cannot say, in contradiction to that, the parties meant the 
 mortgage. Have subsequent transactions varied the case 
 so far, as that either the debt has been forgiven, the bond 
 discharged, as respected Cochrarfs proportion of the debt, 
 or the mortgage reduced by as much as that proportion ? 
 The respondents rely much on the exhibition of an account 
 by McGregor against Ker, in jfune, 1796, wherein he char- 
 ged the lattef- of Cochrarfs proportion of the bond and 
 mortgage, and also upon the execution of a bond by Kcr and 
 his wife, to Miss Fothenngham, by the directions of 
 McGregor, as a further security from Ker, for Cochran' 
 proportion of the debt in the bond and mortgage, payable at 
 a shorter period, and at a different rate of interest than 
 3
 
 STATE OF NEW-YORK. 84 
 
 required by the bond and mortgage given by the respond- ALBANY, 
 ents originally to M'Gregor. These transactions are relied ^J^X^ 
 
 on in two points of view: first, as evidence that Cochran joimG.Leake 
 
 11 an(i 
 
 was discharged from his liability ; and, secondly, as an ex- B . bwartwout 
 
 tinguishment of the debt so due from Cochran. As regards M L \yoohey 
 the first, I am clearly of opinion that the endorsement on _ 1hfcrs ' 
 the bond and mortgage did not, in law, exonerate Cochran 
 
 from his liability. In the case of Rogers v. Payne, 2 iWr. 192 6 
 
 Hep. 44. joiaifc * 
 P. Wms. 376. an action of covenant was brought lor the non- Cf(Se . cv. Jc. 
 
 payment of a sum of money, the defendant pleaded a dis- 
 char^-e, in the nature of a rf lease without deed, in satisfac- 
 tion of all demands. Upon demurrer, it was objected for 
 the plaintiff, that the plea was ill ; for that a covenant to pay 
 money, which is by deed, cannot be discharged without deed, 
 and of that opinion was the court, and gave judgment for 
 the plaintiff. If, then, the endorsement only affected the 
 bond, and if that could not, in law, be discharged without 
 payment or release, it follows, that the endorsement can in no 
 way have effect. As respects the extinguishment, nothing 
 can be more clear or better settled, than that, to extinguish 
 *a debt, something of a higher nature than the debt to be * 85 
 
 extinguished must be given. To give one bond, for a debt 
 secured by another, is no extinguishment. Had the bond 
 given by Ker and wife to Miss Fotheringham been paid, the 
 case indeed might have been materially changed ; but after 
 the assignment of the bond and mortgage by APGregor to 
 Swartwout, and after notice from the latter to Ker, the 
 bond to Miss Fotheringham was, at the instance of M'Grc- 
 gor, given up, cancelled and burnt ; and when Ker might 
 and ought to have regarded the notice from Swarfwout, that 
 the whole mortgage was his, and he alone entitled to be 
 paid, he proceeded to enter into other arrangements to pay 
 McGregor; and now insists on such payment, made, as I 
 conceive, in his own wrong. Had McGregor retained the 
 bond given to Miss Fotheringham, after it was in his custo- 
 dy, and then insisted on Ker\t providing differently for the 
 payment of it, the case would have been very different from
 
 85 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 1804. 
 
 M. L. Woolsey 
 and others. 
 
 what it is ; but that bond was destroyed, Ker then was at 
 liberty to have refused paying M'Gregor by so much as the 
 John G. Leake amount of Cochrarfs share came to ; this he did not, though 
 B. Swat-twout he h a d notice ; but afterwards, at a different time, satis- 
 fied McGregor; first, by a sale to him of lands at 100 per 
 cent, more than they cost him ; and subsequently, by assign- 
 ing another bond and mortgage. I have paid due attention 
 to the authority cited by the respondents' counsel, and I 
 agree with him, that a mortgage may be discharged by pa- 
 rol, or may be forgiven, because it is not a c nveyance of 
 land within the statute of frauds ; but this mortgage has 
 never been discharged, or forgiven, or paid, until after it 
 was assigned. 1 agree further, that the payment of the mo- 
 ney will draw the land after it, provided the payment be to 
 the right party. A bond, however, cannot be so discharged. 
 On the whole, it appears that the appei ants or respondents 
 must lose so much as the share of Cochran amounted to. 
 The appellants gave a full consideration for the mortgage ; 
 the respondent Ker has paid to the amount of Cochrarfs 
 share, but he so paid it to a person not having a right to re- 
 ceive it, with full notice not to pay him ; he paid it, too, 
 without any legal necessity, consequently he ought to pay it 
 again, and to the right person. I am of opinion, that the 
 decree ought to be reversed, and that the appellants be per- 
 mitted to insist on a foreclosure, as well for the amount of 
 Cochrari*s proportion of the debt, as the residue of the 
 mortgage. 
 
 * 86 *Thomas Jenkins against the President, Directors, 
 
 and Company of the Union Turnpike Road. 
 
 A turnpike act, ERROR on the judgment of the supreme court, in a 
 
 incorporating a 
 
 company, with a suit between the same parties, in which the now plaintiff was 
 
 "' vesting 
 
 clause 
 
 tin- mad, on a certain event, in the people, i? a public act, tit semb. The mere subscribing to 
 stock in a turnpike company, where a part of the amount of each slu-.vc is ordered to b; |;niil 
 at that time, gives no interest iu the stock if the money be not paid, and the con.pany car.not 
 bring an action for the amount, as it is nudum pactnm. A clause of forfeiture of shares sub- 
 scribed, takes away the right of suing for them, or money ordered to be paid upon. them.
 
 STATE OF NEW- YORK. 86 
 
 Defendant below, and the now defendants, plaintiffs. The ALBANY, 
 
 1 80 4- 
 
 case was as reported in 1 Gainers New-Tork Reports, 381. _, ' ^_^ 
 Upon the decision there pronounced, the plaintiff assigned Thomas Jenkins 
 the following errors: 1st. That the action being founded Union Turnpike 
 
 upon the act entitled, " An act to establish a turnpike cor- ^"^ 
 
 poration, for improving the road from New-Lebanon to the 
 eity of Hudson," passed the 3d of April, 1801, as set 
 forth in the declaration, it is not alleged, nor in any way sta- 
 ted, that the said Thomas Jenkins, at the time of subscri- 
 bing, or at any other time, paid to the said commissioners 
 ten dollars, or any other sum of money, on each, or any 
 share of the said stock, by which the said Thomas Jenkins 
 would become entitled to the said shares. 2d. That it 
 does not appear by the said declaration, that the parties were 
 mutually bound to each other ; but that the said commis- 
 sioners were at liberty, at any time before the surrendering 
 up to the said company the said subscription, to erase the 
 name of the plaintiff from the said subscriptions, and to re- 
 ceive others in the place thereof; nor does it appear that the 
 said commissioners, or the said president and directors, 
 ever did any act before the commencing the action below, 
 by which they were bound, or in any shape liable to the said 
 Thomas Jenkins, for the said siock, by virtue of the said 
 subscription. 3d. That it does not appear in the said de- 
 claration, that there was any determination of the president, 
 directors, and company of the said turnpike, for the pay- 
 ment of the said several sums of money by the said stock- 
 holders, according to the conditions and terms of the said 
 subscriptions. 4th. That the promises set forth in the said 
 declaration are void, for want of consideration. 5th. Ge- 
 neral errors. On these grounds it was insisted the judg- 
 ment ought to be reversed. 
 
 The defendants contended, it ought to be affirmed for the 
 following reasons : 1st. Because it does not appear on the 
 record, that ten dollars was by the act required to be paid 
 on each sharer subscribed, and, as it does not appear, it can- 
 not be ^assigned for error. 2d. Allowing it might be so * g?
 
 8r CASES IN ERROR IN THE 
 
 ALBANY, assigned, as the obligation prescribed by the act is to the pre- 
 
 . , sident, directors, and company, for the whole amount of 
 
 Th^Ckins twenty-five dollars upon each share, and as the payment of 
 
 Union Turn ike tetl d llars u P on each shar WSS f r the beneflt * nd USC f 
 
 Company. fa com p a ny, the non-payment of this latter sum cannot be 
 " assigned by the plaintiff, as an objection to the payment of 
 the former, because he would then be permitted to take ad- 
 vantage of his own wrong. 3d. Because the commis- 
 sioners were authorized only to receive, and not erase sub- 
 scriptions, and by admitting the subscription, were bound to 
 consider the plaintiff a stockholder, until they should de- 
 clare his shares forfeited ; and by their calls upon him for 
 his instalments, they acknowledged his right to call on them 
 for dividends. 4th. Because the president and directors 
 are the only organs, through or by which the affairs of the 
 company can be conducted. 5th. Because the subscription 
 passed to the plaintiff an interest and right in the stock of 
 the company, by virtue of which he was entitled to divi- 
 dends, and created therefore a consideration sufficient to 
 support his promise, for breach of which the action was 
 brought. 
 
 Woodworth^ Attorney-General, for the plaintiff. Against 
 going into the first error we have assigned, the defendants 
 insist, that as the circumstances we there rely on do not ap- 
 pear on the record, we cannot avail ourselves of them, though 
 they are specified and required by the act of incorporation, 
 under which the present suit was brought. To decide on 
 the force of this objection, we must inquire whether this be 
 a private or a public act. If it be the latter, then the court 
 must take notice of it, and we may avail ourselves of all its 
 provisions. It is not "necessary to plead a general statute, 
 19 Vm. Abr. letter C. pi. 8. And every statute is general 
 which may apply to every man. Ibid, in notis. This is 
 clearly such a statute, for every man may be a stockholder, 
 and every man may use the road, and must pay. So every 
 act which concerns the king, though the matter of it relate
 
 STATE OF NEW-YORK. 
 
 to individual persons or things, is a public statute, of which ALBAKY. 
 the judges ex officio must take notice. Therefore the 2 Ph. 
 fc? M concerning the trade of a dyer,is held to be a public act, 
 because the forfeiture goes to the king. Ibid. pi. 11. in no- 
 tis. Within this principle, the act in question must be a 
 public act, for, after a certain period,! *by the ttth section, JAi^-t 
 "the right, interest, and property of the said road shall illt ; reb t a i u.e 
 vested in the people of this state." Also, by the act order- J* 
 ing the publication of the laws,* the persons appointed to ^ ^ ^ J* 
 revise them, were directed as a matter of "duty," to in* t G20 . 
 in a separate volume, the titles of acts of a partial or local 
 nature. In executing this direction, they have, in the 2d 
 vol. Rev. Laws, 518. placed under a particular title of " spe- 
 cial," many laws; but amongst them this is not inserted, | * * 
 and therefore they must have considered it a public statute. 
 The court below have acted on this as a public law, and re- 
 ferred to it in their decision, in consequence of the counsel 
 now opposed to us, having in their argument treated it as a 
 general statute. On the face of this law, it will not support 
 the present suit. It prescribes a peculiar remedy, on failure 
 of the party subscribing for stock. His shares are to be 
 forfeited. It was not therefore the intention of the legisla- 
 ture to permit an action at law. The loss of the ten dollars 
 ordered to be paid, to raise a fund of 20,000 to commence 
 the road, and the forfeiture of the share, was the punish- 
 ment inflicted by the act for a non-compliance with the sub- 
 scription engagement. The subscription created no con- 
 tract, and gave no rights. It was merely to ascertain the 
 stock taken up. But at all events, to acquire a right in that 
 stock, the payment of glO was necessary, and ought to have 
 been averred. Without payment, the contract was nudum 
 pactum, as it could not be enforced against the corporation. 
 To give a right, two acts were made necessary, subscription 
 and payment. A compliance with one, gave no tide to de- 
 mand the stock, and unless both parties were bound, there 
 was no contract in law. Cooke v. Oxley, 3 D. fc? E. 653. 
 The consideration must be apparent on the record, smd set
 
 88 CASES IN ERROR IN THE 
 
 ALB \NY, forth in the declaration. That the promise is stated t 
 be in writing, is not sufficient"]' to show a consideration. 
 
 Thomas Jenkins Rann v. Hi/ghes, 7 D. &? E. 350. overruling in this 
 Union Turnpike point, Plllans v. Van Mcirop. Wherever one thing is to 
 be the consideration of another, though there be mutual 
 t See the note in promises, performance must be averred and proved. Cal- 
 386*' r ' R ' lonel v. Briggs, 1 SdUt. 112. The payment of the 
 !SlO ought, therefore, to have been expressly stated, 
 as it was the sole ground of right against the compa- 
 ny. For, unless it was by this means acquired, the pay- 
 ment of the &10 would have been without consideration. 
 * 89 * The payment of these SlO, was a condition precedent ; 
 
 therefore, till that was performed, no right could accrue to 
 Jenkins. I Salk. 172.J Goodison v. Nunn, 4 D. & E. 761. 
 The declaration therefore should show a tender and refusal 
 of the stock. The same doctrine is found in 1 Vin. 338. 
 tit. Actions of Aftsumpsit, (Z. 3.) It is not enough to state 
 the demand of 5, on an order by the president and direct- 
 ors. This does not evince that the plaintiff had the stock ; 
 and if he had not, he was not obliged to pay the order. The 
 not setting forth a due consideration, is matter of substance, 
 ever available of, and not cured by a verdict. Foster v. 
 
 Cooke v. Sam- Smith, Cro. Car. 31. 1 Sid. 182. Cro. Jac. 503.1f Doug. 
 
 ovrae r 
 
 f Lenneret v. 679.** With respect to the order of the president and di- 
 
 Sivet. Where . . 
 
 twi> con*idera- rectors, it is sunicient to observe, that delegated authorities 
 
 lions are dccla- 4 . . j rpii , 
 
 red on, perform- must be strictly pursued. 1 he power is given to the presi- 
 must beliieffed h dent, directors, and company, and though only the two 
 and if one aver- f orm er may be the active parties, the order should have been 
 
 ment be good, 
 
 and the other i n the names of all. The defendants relied in the court 
 
 bad, judgment 
 
 on a general rer- below, on the contract of the now plaintiff; let them there- 
 
 diet will be ar- r 
 
 rested tore connne themselves to it, and show the breach within 
 
 'shlon v. t 
 
 s letter. 
 
 Williams and W. W. Van Ness^ contra. This is an action 
 upon an express written contract, subscribed by the plaintiff 
 in error. Its form is prescribed by the act incorporating 
 the company. Its terms arc explicit and intelligible, and
 
 STATE OF NEW-YORK. 89 
 
 the legal obligation imposed by it, equally clear. The plain- ALBANY, 
 tiff, conceiving that sufficient matter in law did not appear ^^ *^^ 
 upon the record in this cause, to support the judgment of the Thomas Jenkins 
 court below, has assigned four specific causes of error, to Union Turnpike 
 which is added the general assignment. In order more Compuny. 
 clearly to comprehend the force of these objections, it will 
 be proper to read the contract on which the action is found- 
 ed, as stated in the declaration. " We, whose names are 
 hereunto subscribed, do, for ourselves, and our legal repre- 
 sentatives, promise to pay to the president, directors, and 
 company of the Union Turnpike Road, the sum of twenty- 
 five dollars for every share of stock in the said company, set 
 opposite to our respective names, in such manner and pro- 
 portion, and at such time and place, as shall be determined 
 by the said president, directors, and company." Before ex- 
 amining the errors assigned, it may be necessary to state 
 what may be assigned for error, and whether that which is 
 contained in the first error *can be the subject of such assign- * 90 
 
 ment : that is, whether matter dehors the record can be as- 
 signed for error, and whether the matter now assigned c!ot:s 
 appear on its face. The errors all point to supposed de- 
 fects in the declaration. But if we can show that whr.t is 
 now assigned could not have been urged in arrest of judg- 
 ment, then the court will not reverse the judgment. It does 
 not appear,/rom the record, that the act contains one word 
 of payment to be made at the time of subscribing. It alleges 
 only, that the plaintiiF did subscribe ; not that any sum of 
 money was to be paid. Therefore, nothing respecting non- 
 payment can be assigned for error, unless permitted to 
 search the act and travel out of the record. The rule is, 
 nothing extrinsic, nothing which does not appear on the face 
 of the record, can be assigned as error. It is laid down in 
 3 Black. Comm. 407. " that a writ of error lies only upon mat- 
 ter of law arising upon the face of the proceedings." So, 3 
 Wooddes. 359, 360. " if either party be dissatisfied with the 
 judgment of the court pronounced, either on demurrer or 
 arrest of judgment, (which, as already mentioned, must re-
 
 90 CASES IN ERROR IN THE 
 
 ALBANY, late to some matter apparent upon the face of the record,) 
 V^J^t^y the record may be removed, by writ of error, into a supe- 
 Thomas Jenkins r ior tribunal, in order to the reversal or affirmance of the 
 Union Turnpike former judgment." A further reason why ihe first error 
 _ assigned cannot be maintained, is, that it discloses matter 
 which ought to have been pleaded ; and it is a general rule, 
 that what may be taken a<> vantage of by plea, cannot be as- 
 signed for error. Com. Dig. tit. Pleader, (3 B. 16.) Cro. 
 i JUvrrana Ei'iz. 4.f In the present case, the declara ion did noi state 
 Afeft&U'reaM. the ftct as or< kri n g payment ot the glO. 1 he now plaintiff, 
 to avail himsell of it,ought to have disclosed it by way of plea, 
 and then we might have traversed, cr demurred, or taken 
 issue on the payment, it was enough for us to set forth 
 only so much oi the act as made for ourselves. A declara- 
 tion need recite no more of a statute than is pertinent to the 
 action. Com. Dig. tit. Pleader, (2 S. 3.) Ibid. Action upon 
 Statute, I. The residue should have come from the now 
 plaintiff. In Patter v. Reed, Cro. Jac. 139. a second error 
 assigned, was, ^ because the plaintiff founded his action upon 
 the statute, and recites only such part thereof, whereby he 
 would charge the defendant generally, whether he hath as- 
 sets or not ; and it appears, by the other parts of the act 
 * 91 *pleaded by the defendant, that he is not chargeable, unless 
 
 he hath assets of the money received upon the sale of the 
 lands, or woods, or debts of Sir T. G. so the statute is not 
 fully recited by the plaintiff. Sed non allocatur, for the 
 plaintiff reciting what made for his advantage, the defendant 
 may plead the residue if he will." The same doctrine is 
 t *, v. found in Cro. Jac. 506.$ and in Cnof. 665. That this is 
 fllSL, v. a public act, we deny on the authority of the act cited by 
 trvjmnth. the Attorney-General, 1 Rev. Laws, 620. By the first sec- 
 tion, all the public acts are directed to be contained in the 
 first volume of the laws. This act is not there. It is with- 
 in the description of a private act. Com. Dig. tit. Parlia- 
 f Hollands^, ment, (R. 7.) 4 Rep. 76.fi A turnpike act is no more a 
 public statute, than one incorporating a bank. As to the 
 clause, by which it is enacted, that on a certain event the 
 
 3
 
 STATE OF NEW-YORK. 
 
 road shall go to the people, it means no more than that it ALBANY, 
 shall become a common road again. But allowing that the v^^X-/ 
 declaration is not so full as it might have been, it may be TLOM Jenku* 
 questioned whether any advantage can be taken of it now. Unbn Turnpike 
 
 After verdict, many imperfections are cured, which would, 
 
 if urged before, have been fatal. 3 Black. Comm. 394. 1 Sell. 
 Prac. 523. 2 Wlb. SGl.f 3 Burr. 1725. Wctton v. 
 Mason. For then, every thing will be supposed proved, 
 which must at the trial have been established, to entitle to a 
 recovery. 1 Wils. 255.$ On the point of consideration * * 
 there can be no doubt ; mutual promises are sufficient in law 
 to create good considerations. These, by the subscribing 
 the note, were raised. On the one hand the plaintiff pro- 
 mised to pay, and on the other, the company promised to 
 receive him as a stockholder. Suppose a man sells a horse 
 for glOO, and $10 to be paid down ; in a suit by the ven- 
 dor, can the vendee say the contract is annihilated, because 
 he did not pay the glO ? The words legal representatives 
 evince, that the payment was not to be simultaneous with 
 the subscription. The legislature intended the bargain and 
 contract to be complete, on the mutual promises resulting 
 from the subscribing. The clause empowering to cause to 
 fee forfeited the shares of any defaulter, was introduced to 
 give a new and superadded right to the corporation, which 
 was not incident to their nature. It was a cumulative reme- 
 dy. But this does not abrogate their inherent right to sue 
 n all contracts made with them. A lessor may have a '"re- 
 medy on his covenant, without losing his right of distrain- 
 ing, or re-entry. So that possessing one remedy, is no ar- 
 gument for losing all others. The order made by the com- 
 pany, is stated according to the only manner in which it was 
 possible to have been made ; that is, by the president and 
 directors. They were the constituted agents of the compa- 
 ny, and to state their arts in the line of that agency, is t 
 state the acts of the company.
 
 92 CASES IN ERROR IN THE 
 
 ALBANY, Hanson, in reply. The act furnishes no one word to au- 
 
 thorize the idea that the subscriptions are recoverable by 
 
 ThomasJerikins suit ' * n actions founded on statutes, the rule is, that where 
 no remedy is given, the common law will interpose and af- 
 
 Uiuon 1 urnpike ' 
 
 Company, ford one ; but where the statute prescribes a remedy, no 
 other can be resorted to. Saying the remedy is cumulative, 
 is a violation of all principles. On the point of considera- 
 tion it is manifest, that had Jenkins brought an action against 
 the president, directors, and company, for his proportion of 
 the toll, they might have replied the non-payment of the 10, 
 and it would have been conclusive. If so, they were not 
 bound to him, and consequently he was not bound to them. 
 This, then, is a clear nudum paclum, ex quo non oritur actio. 
 Cookc v. Oxley, already cited. Two acts were necessary ; 
 subscribing and paying. To take this case out of the gene- 
 ral rule, it ought to be shown, that the shares vested by the 
 subscription. Latham v. Barber, 6 D. & E. 67. Allowing 
 however the contract to have been good, the judgment must 
 be reversed ; for the order set forth by the pleadings is not 
 in conformity to the contract relied on. It is to pay ac- 
 cording to the order of the president, directors, and com- 
 pany ; the order is by the president and directors. It 1 en- 
 gage to pay according to the order of A. and B. you must 
 show that A. and B. made an order. If not, a defective title 
 is shown, not an actual title defectively set forth. This is 
 a fatal circumstance, and not cured by verdict. Rushton v. 
 t fris* v. H7*?. Asp'mall. Doug. 679. 2 Lev. 152.J and the cases cited by 
 the Attorney-General. The company have not pursued 
 their power of making the order according to the words of 
 the act. It is a delegated authority, and must be strictly 
 pursued. Fronting v. Small, 2 Ld. Raym. 1408. 2 Bac. Abr. 
 7, 8. This also is conclusive against the judgments. 
 
 LANSING, Chancellor. The first point to be determined, 
 
 is, the class to which the act of the legislature, on which this 
 
 * 93 action *has been brought, is to be assigned ; if a public 
 
 act, every part of it is, in legal intendment, in the know-
 
 STATE OF NEW-YORK. 95 
 
 ledge of the court, as the general law of the land. If a pri- ALBANY, 
 vate act, it can only be so far attended to, as the parties, ^^^^s 
 by their pleadings, have made it an object of judicial Thomas Jenkins 
 conusance. Amongst the English legal maxims, we find, Union Turnpike 
 
 , COP.'., ..u v 
 
 that every statute that concerns the king, and every statute _ _^ __ 
 that relates to all the subjects of the realm, are public sta- c '- 5 ;j; *;',;'.; 
 tutes. All highways, as contradistinguished from private ca sc. s Hep.jx, 
 
 . - . , 138. Hob. ^27. 
 
 ways, are common to all the people ol the state, and con- 
 
 cern them generally. A new creation of a highway, or a 
 
 new modification of an ancient way, as in the case of a 
 
 turnpike, does not affect the mode of using it generally. It 
 
 is still a highway, in the preservation of which, all citizens 
 
 are interested. It contributes essentially to their conve- 
 
 nience. The toll is merely exactable for its construction, 
 
 maintenance, and repair. In all other respects, the right 
 
 of using it as a highway is unimpaired. The people of 
 
 the state, who, in their collective capacity, have succeeded 
 
 to the rights of sovereignty, are also entitled to the re- 
 
 version, after the sums charged on the turnpike are satis- 
 
 fied. These considerations rather incline me to think that 
 
 this statute ought to be considered as a public act ; but, for 
 
 the purpose of this argument, I do not suppose it neces- 
 
 sary to be very nice, in discriminating between public and 
 
 private acts. For, though it is true, that private acts must 
 
 be specially pleaded, the plaintiffs in the court below, by 
 
 their allegations, have so far placed the act, on which this 
 
 action is founded, before the court, as to enable them to 
 
 examine the statute, to discover whether the ground on 
 
 which they relied can sustain their action. They have re- 
 
 ferred to the statute by its title, which is the name or de- ^ 1 ^.ff s Mill 
 
 scription given to it Inj its makers, and though the plaintiff 
 
 need not recite more of the statute than is necessary to sup- 
 
 port his action ; and though it is laid down, that a m.sre- F^, 428. 
 
 cital, which does not go to the ground of the action, is ' D 
 
 helped after verdict by the statute of jcofuils; yet it is re- Sty. 
 
 quisite, that he should show that the ground of his action 
 
 is consonant to the provisions of the statute, to which he 
 
 w
 
 ALHANY, has thus generally referred in pleading, and so far forth as 
 it is material to show the ground of his action, he has 
 Th^^ul^ins given it the property of a public statute. This is clearly 
 Union Turn ike distinguishable from showing an exception by pleading. In 
 Company. t h a t case the plaintiff only shows *his right of recovery ge- 
 $ Q4 " nerally, and the defendant must, by pleading, bring him- 
 
 sell' within the exception. In that case, the record will al- 
 ways consist with the statute. In the other, an action may 
 be sustained, which, from a mere comparison of the re- 
 cord with the statute, will show a recovery without right. 
 I mean now to consider, 1st. Whether the contract in ques- 
 tion is a valid one ? 2dly. Whether an action is sustaina- 
 ble by the defendants for the sums required from the stock- 
 holders ? From the record it appears that commissioners 
 were appointed by the statute to perform certain duties, 
 particularly prescribed. They were to receive subscrip- 
 tions, and to receive, for the benefit of the defendants, $1O 
 on each share of the stock of their company, ihe plain- 
 tiff subscribed, but it does not appear that he paid. At the 
 time these steps were taken, the corporation, described in 
 the act, was not in existence. It was incapable of con- 
 tracting. The acts to be performed by the commissioners 
 were merely preparatory to its creation. To give effect to 
 their acts, their power must be strictly pursued. They had 
 no discretion, or latitude of action; their line of conduct 
 was marked with the utmost precision. They were direct- 
 ed to exact from the persons, who were to be admitted 
 members of the corporation, both subscription and payment, 
 as a condition precedent to their admission. If they omit- 
 ted either to subscribe, or to pay, they did not come within 
 the terms of admission. If so, the bare act of subscrip- 
 tion was wholly nugatory. The subscribers, who were to 
 meet, could only constitute themselves such, within the in- 
 tent of the statute, by a compliance with the terms pre* 
 scribed by it. When the corporation was organized, the 
 directors might dispense with the exaction of the first pay^ 
 But if they did so, there was no ground for ex~
 
 STATE OF NEW-YORK; 
 
 tending the doctrine of relation to the transaction, so as to ALBANY, 
 
 i 1? 1804. 
 
 bring it within the rules applying to mutual contracts. or, ^^^^^ 
 if the doctrine of relation is to be applied, it will carry it to Thomas Jenkins 
 a period beyond the existence of the body politic with Union Turnpike 
 whom the contract is supposed to have been made. If the >ompan> ' 
 defendants had affirmed the contract, in all 'he time inter- 
 mediate the affirmance and the subscription, the contract 
 had been suspended. Now, it is a well established rule, 
 that, to give effect to mutual contracts, a unity of time, as 
 to their commencement, so as to bind both parties from the 
 same point *of time, is essential. It did not constitute a 
 contract ; for, the contract, if any, was, " I agree to pay 
 25 for every share I acquire by this subscription," and // 
 none were acquired, none were to be paid for. This result 
 would render it unnecessary to examine the second point ; 
 but I shall cursorily remark, that if the subscription was 
 efficient in the first instance, I have no doubt but that the 
 defendants might resort to their action, as a cumulative 
 remedy, and that they had their election either to sue, or 
 exact the forfeiture prescribed by the statute. This is an 
 affirmative statute ; it prescribes a form of contract, which, 
 if so entered into as to bind the parties, at the time of con- 
 summation, without any aid from the statute by other ex- 
 press provision, would entitle the defendants to maintain 
 their action. It is a maxim in the common Lw, that a sta- 2 Tmt. 200, 
 tute made in the affirmative, without any negative express- 
 ed or implied, doth not take away the common law. 
 Therefore the plaintiff may either have his remedy by the 
 common law, or upon the statute. For the reasons given, 
 I am of opinion, that the judgment in this case ought to be 
 reversed on the first point. 
 
 L'HOMMEDIEU, Senator. The act establishing this cor* 
 poration directs, that every subscriber shall, at the time of 
 subscribing, pay unto either of the commissioners the sum 
 of ten dollars, for each share so subscribed. The material 
 question in this case is, whether a subscriber, refining to
 
 95 
 
 ALBANY, pay the money subscribed, is liable to an action for the mo- 
 v^J^ . ney subscribed ; or whether forfeiture be not all the punish- 
 Thomas Jenkins ment. This act, being made for a particular purpose, 
 Union Turnpike ought to be strictly pursued ; and as there is no remedy 
 C( " T 'i' a " y - given, except the forfeiture, that forfeiture is the only thing 
 the corporation can insist upon. In this case, the sub- 
 scriber refused to pay the money the law declared should 
 be paid at the time of subscribing. If this was not done, 
 it was a nuditm pactum, or void compact. The plaintiff, by 
 this, forft ited his right to be a stockholder ; and, in case 
 the stock had rose, the company would have been under no 
 obligation to have considered him as a stockholder. This 
 is, I believe, the first instance of a suit's being brought on 
 a subscription to a turnpike or canal corporation, on ac- 
 count of a refusal to pay the subscription money. This 
 shows the general sense of the community, in respect to 
 such subscriptions. Many instances of this kind in the 
 * 96 canal company, insurance ^companies, banking companies, 
 
 and others, have taken place ; and if the doctrine of sub- 
 scribers' being liable to pay up the shares in such navigation 
 companies to which they have been subscribed, be once 
 entertained, it would be ruinous to many ; contrary to the 
 intent and meaning of the parties, and the obvious con- 
 struction of the law. The determination of this court will 
 settle the rule in regard to corporations which are formed, 
 or similar ones which may be created, as to bringing suits 
 on subscriptions. If the defendants are suffered to re- 
 cover, it will open a wide door for numberless suits, if the 
 corporations are disposed to bring them. By the contrary 
 rule no inconvenience will accrue. In this case before us r 
 we have no facts to show why the subscriber refused to pay 
 the money subscribed by him. But whatever reason he 
 had for his conduct, I am of opinion he had a right so to 
 do, by the fair construction of the act; and that the judg- 
 ment of the supreme court be reversed. 
 
 Judgment reversed, the court holding no action would lie.
 
 STATE OF NEW-YORK. . 96 
 
 Robert Furman, Appellant, and Jesse Coe, Samuel 
 Coe, and William Coe, Respondents. 
 
 ON appeal from chancery. Robert Coe, the grandfather n .*f;< 
 
 ef the respondents, by his will empowered his executors, tei^a ' 
 
 William Furman and William Howard, to stll and dispose P u 1 ' a ^ 
 
 of all His real and personal estate, at such time as should be rev i ew , and not 
 
 judged most advantageous for his children. He directed xvi.en'a.e^oml 
 
 also, that his daughtt-r Mary Cot's children (ihe respondents) 2SJttnj!!ed 
 
 should have the same quantity of money between them an their jjjjjj^jjjf 8 ( -f 
 
 mother, the said Mary Coe, should have had for her portion, ^y*^ 
 
 had she survived '; that is, to be equal with the rest of his M .| ltjn tl.eir cre- 
 
 _ , . iit, by articles. 
 
 daughters, such share to be left in the hands oj his executors, } ,-. m e ' xccutol - or 
 to bring them up. On the death of the testator, Howard 5 l Ttrustmt 
 refusing to act, William Furman alone proved the will; JJJiwt^m'Sj 
 and in pursuance of the authority it contained, being ^ *^ 
 about to sell the estate of the testator, some of the lega- OT tnatoejbe 
 tees, who were of age, objected to it, urging, that, from 8 | re pre*enta|re 
 the then existence of the revolutionary war, the land would SfU, though 
 sell to a great disadvantage ; and that, as several robberies ^IJSVSS 
 hud been committed in the neighbourhood, the keeping ^^ ^J"" 
 *the money it might bring would be attended with danger ; seats. ^ 
 but that if a sale was to take place, it ought to be at auction, 
 as in that manner a higher price would be obtained. The 
 executor, however, without attending to these remonstran- 
 ces, proceeded in the disposition of the real and personal es- 
 tate of the testator, which he sold in the month oi May, 
 1779, at private sale, for 3,U8/. of which sum the real es- 
 tate produced 3,000/. On the 3d of August following, the 
 executor divided the money aiising from the sale among the 
 legatees, according to their interests under the will, and took 
 from those who were of age a receipt in full, for all their 
 shares and proportions respectively ; but the part belonging 
 to the respondents, the eldest of whom was not then six years 
 old, he, according to the directions of the will, retained in 
 his own hands. In 1783, William Furman, the executor,
 
 97 CASES IN ERROR IN THE 
 
 ALBANY, died, and the appellant, his son, having administered on his 
 
 1 S0*i 
 
 \^jr A_' estate, the respondents filed their bill against him, for the 
 K. Fin-man recovery of their legacies, under the will of Robert Coe. 
 ,1. Coe & others. To this the appellant put in his answer, insisting on a total 
 exoneration, in consequence of his father's house having 
 been broken open by some robbers, who took away all the 
 money then in his father's possession, including that belong- 
 ing to the respondents, no part of which had ever been re- 
 covered. On the examination of witnesses, the fair cha- 
 racter of the executor and the robbery were fully established. 
 The testimony of one witness went to show a recovery of 
 the money, from an acknowledgment of the executor in 
 conversation with him. It was also in evidence, that Wil- 
 Ham Fur man had refused to advance to Susannah Coe, with 
 whom the respondents lived, any thing for their support, 
 saying no person should have money from their legacies, 
 until they should come of age. It appeared also, that Wil- 
 liam Furman had let out the real estate of his testator for 
 two years. Upon these circumstances, the Chancellor had 
 decreed to the respondents their full proportion of the real 
 and personal estate of Robert Coe, without any deduction; 
 and also their proportion of two years' rent of the real estate, 
 with full interest on the whole, to be computed at the expi- 
 ration of three months after the sale of the testator's pro- 
 pei'ty. After pronouncing this decree the appellant present- 
 ed a petition for a rehearing, setting forth, that he had since 
 discovered that two of the respondents' witnesses (whose 
 
 depositions *were read at the hearing of the cause) were, at 
 0& 
 
 the time of their examination, interested in the event ; and 
 
 that one of the respondents died before the hearing, having 
 bequeathed his interest under the will of Robert Coe, to the 
 \vitnessesin question. The petition having been dismissed 
 with costs, the appellant presented another for a rehearing, 
 in which he stated that Susannah Coe had, with two of the 
 respondents, resided on the real estate of the testator, from 
 May, 1778, till it was sold ; and that during the war it was 
 very difficult to put money out at interest ; that when it 
 3
 
 STATE OF NEW-YORK. 98 
 
 could be done, it was at a very low rate ; and that, at no ALBANY, 
 time from thence to the present day, had money been loan- v ^-^ J 
 ed at 7 per cent. This petition being also dismissed with R. Fur-man 
 costs, the appellant appealed, as well from the orders there- j. C oe fc others, 
 on, as the decree in the cause. Bogert, for the appellant, - 
 having opened the case, his Honor the Chancellor proceed- 
 ed to assign his reasons : 
 
 Mr. PresidentYour questions have been discussed in 
 this case, as material to a decision between the parties. 1st. 
 Whether the sale of the real estate by the executor was bo- 
 nd fide ? 2d. Whether the fund, destined to the support 
 and education of the complainants, was inequitably with- 
 held ? 3d. Whether robbery can legally operate to discharge 
 an executor? and, 4th. Whether the evidence of the robbery 
 in the present case is competent to his discharge on that 
 ground ? The will vested a liberal discretion in the execu- 
 tors as to the time of sale. They were authorized to sell the 
 testator's real and personal estate, at such time as should be 
 most advantageous to the children of the testator. He di- 
 ed in 1777; the sale of the real estate took place in 1779. 
 It is perhaps difficult, at this late day, to appreciate with ac- 
 curacy the motives to the sale, at the time it took effect. It 
 was at a period of great public commotion ; when the ope- 
 rations of contending armies had affected the value of real 
 estates very essentially ; when that species of property, from 
 the circumstances of the times, and the repeated depreda- 
 tions of lawless men, was, however, to be preferred, as a 
 permanent fund for the support of persons incapable of ma- 
 naging their own concerns, to the less secure investment of 
 money. These considerations it seems were fully brought 
 into the view of the executor, by the representations of some 
 of the persons beneficially interested under the provisions of 
 the will ; they were disregarded, *and the sale persisted in. * 99 
 
 Yet from a review of all the depositions, I think the ra- 
 tional result drawn from the whole collectively, is, that the 
 testator's real estate was not sold much below its value.
 
 99 CASES IN ERROR IN THE 
 
 ALBANY, Several of the witnesses depose positively to this. Those 
 
 1804. 
 
 who differ, either mention in indefinite termsthat it was sold 
 
 K. Furman below its value, or, if thev define the sum, they connect the 
 T. Coe & others, advanced price with a sale at auction, to which the executor 
 was not bound to have recourse. This, combined with the 
 circumstances that all the other devisees, capable of acting 
 for themselves, immediately acquiesced, received their divi- 
 dends of the consideration-money, and executed acquittan- 
 ces, I think, may well be admitted to close the examination 
 as to this point ; for, though their acts generally cannot ope- 
 rate to the prejudice of the complainants, on this point, they 
 speak an unequivocal language as to the fairness of the sale, 
 as they are not even suspected of collusion with the execu- 
 tor. As to the second point, this is important in one view 
 of the subject. For, if the executor, regardless of the obli- 
 gation he had incurred by taking upon himself the execu- 
 tion of the will, refused to provide for the support and edu- 
 cation of the complainants, he may be chargeable for such 
 breach of trust. The complainants have specifically char- 
 ged this refusal in their bill, and the defendant, in his an- 
 swer, avows his ignorance of any advance, for that purpose, 
 by his intestate. The will directed that the shares of the 
 complainants (Mar if s children) should be left in the hands 
 of the executor to bring them up. The children, all the wit- 
 nesses examined to that point concur, were of a very tender 
 age, at the time of the death of the testator. Susannah Coe 
 swears that she brought them up ; that she lived within two 
 miles of the executor ; that she several times called upon 
 him for some portion of their share of their grand- 
 father's estate, for their support and education ; that he po- 
 sitively refused, without assigning any reason, to advance any 
 till they arrived of age ; that the complainants were in want 
 of clothing, and other necessaries ; that this was after the sale 
 of the real estate, and after some of the devisees had been paid. 
 Robert Moore, John Moore, Hezekiah Field, and Sarah 
 Leverick, confirm the account of the infancy, destitute situa- 
 tion of the complainants, and their being supported by their
 
 STATE OF NEW-YORK. 
 
 prandmother, aunt, or some other of their relations. The ALBANY, 
 
 B J f U 1804 - 
 
 executor has been proved *to have sustained a iair charao \^~^..*^j 
 ter, by all the witnesses examined to that point j but the R. Fin-man 
 rircumstances of his retaining the fund destined to support J. Coe & others. 
 and educate the orphans, whose interests had been commit- 
 to his charge ; of his observing them thrown upon the 
 bounty of their relations, destitute of clothing, and in want 
 of necessaries of life, and this, in direct violation of the trust 
 he had undertaken, are calculated to throw an air of suspi- 
 cion on the whole subsequent transaction ; and, as far as 
 part of the fund was necessary to be applied to their 
 subsistence and education, it \vould clearly make him lia- 
 ble, whatever might be the consequences, of die robbery as 
 to the residue. As to the third point ; in 2 Fonb. 191. it is 
 laid down as a result deduced from the cases bearing on this 
 question, that if a trustee be robbed, the sum lost by the 
 robbery shall be allowed him in account, although the 
 amount be proved only by his own oath. To fortify this rule 
 he cites the case of Marly and Marly, 2 Ch. Cases, 2. in 
 which the robbery was proved, and the sum, by the defend- 
 anfs own oath. In Co. Lift. 89. it is said, that if a guardian 
 receive rent, and be robbed, if without his negligence and 
 default, he shall be discharged. In Southcote's case in ac- 4 Rci,. 84, a 
 count, it was held to be a good plea before the auditors, that 
 the defendant was robbed. In Jones v. Lewis, 2 Vez. 241. 
 there is the same doctrine, as to robbery being a dis- 
 charge of the executors, if properly proved. These cases 
 establish the doctrine, that if an executor be robbed with- 
 out his default, the robbery being proved, he shall, by his 
 own oath, be permitted to ascertain the sum lost, and shall 
 be discharged as to such sum. It is therefore only necessa- 
 ry to test the evidence in the present case by that rule. The 
 authorities cited permit the defendant to adduce the evi- 
 dence of the robbery, and by his own oath, to ascertain 
 the extent of the loss ; but it is certainly not a necessary 
 consequence of this rule, that because a departing step 
 has been taken from the strict line of evidence by admit- 
 
 u
 
 100 CASES IN ERROR IN THE 
 
 ting the defendant's oath, in his exoneration ; there- 
 ^ fore it is necessary to continue a progress in the same 
 
 R. Furman direction, by taking his declaration, unsanctioned by 
 j. Coe & others, oath, as part of the evidence. The defendant in this case 
 
 ' ~ has stated the robbery positively. But he has connected 
 
 with it the information, that he was absent from Long- 
 Island during the whole of the war beween the United 
 States and Great Britain, and thus conclusively evinced, that 
 * 101 #the fact of the robbery was not asserted on his own know- 
 
 ledge of that circumstance, but collected from the infor- 
 mation of others. That a robbery was committed, and 
 some money stolen from the executors, seems to be pretty 
 well established. The declarations of the executor, though 
 contemporaneous, I think cannot be admitted as evidence ; 
 but if they could, those declarations are so inconsistent with 
 each other, as, even admitting their validity generally to 
 establish the point, to fail of that effect here. All the wit- 
 nesses, however, speak of his declarations only, without any 
 pretension to personal acquaintance with the circumstances 
 of the robbery, excepting Abigail Rhodes, Mary Boss, and 
 Robert Drummond', who were in the house of the executor 
 on the night the robbery was committed ; they also agree 
 that the house was broken open by a party of men armed 
 and disguised. Abigail Rhodes deposed, that 800/. or 900/. 
 in cash was carried off, besides some articles of silver ; 
 that part of the money so carried off, " was money received 
 of the estate of Robert Coe, deceased, and then in the hands 
 of William Furman, senior, as executor of that estate." 
 Upon her cross-examination she declares, " that some part 
 of the money of which the said William Furman was rob- 
 bed, belonged to himself, some to the brother of the said 
 William, and that a considerable part belonged to the estate 
 of Robert Coe, deceased ; that all the money of which the 
 said William was robbed, was kept in a strong chest, in an 
 upper chamber, at the time of the said robbery ; that the 
 money was in gold and silver, and was contained in bags." 
 She then proceeds to relate, that the executor was sent for
 
 STATE OF NEW-YORK. 
 
 to New-York, to attend the trial of some soldiers for the Al ;B.VNY, 
 robbery ; that a purse containing sixty guineas was shown ^^^^/ 
 to him, and he was required to identify it, which he could 
 not. Mary Boss deposes, that the party robbed the exe- J-O** 
 cutor of all the money in the home ; that she was present 
 and saw the robbers carry off the bags containing the mo- 
 ney. Upon her cross-examination she says, that the mo- 
 ney of which the executor was robbed, was kept in a chest 
 in an upper room; that it consisted of hard money, and was 
 contained in bags ; that she saw the robbers bring the said 
 bags down stairs, and carry them away ; that she knew not 
 the quantity of money, having never seen it counted ; that 
 she was at that time employed by Mrs. Furman to spin. 
 Robert Drummond #says, that the latter end of September, * 102 
 
 or beginning of October, 1779, when the robbery was com- 
 mitted, he lodged at the executor's ; that he saw one of the 
 robbers force open a chest, and take from it a bag ; that 
 another broke open a closet, and came out with three bags, 
 which he supposed contained money, as it rattled ; that the 
 executor, after the robbers were gone, observed, that 300/. 
 of the money belonged to some orphan children, of the 
 name of Coe; that he had offered the money to the relations 
 of those children, telling them it was troublesome times, and 
 that he did not wish to run any risk in keeping the money. 
 Abigail Rhodes particularizes the several owners of the mo- 
 ney, and mentions the executor, his brother, and the estate 
 of Robert Coe, as composing those owners ; all this money 
 she says was put in bags, in a strong chest, in an upper 
 chamber. Alary Boss says they took all the money in the 
 house, which she also says was in a chest in an upper room, 
 and that it consisted of hard money, and was contained in 
 bags. If all this money described by these two witnesses 
 was in bags and contained in a chest, Robert Drummor^s 
 testimony shows, that the whole of the money from this 
 chest was not taken ; for he expressly declares, that only 
 one bag was taken out of the chest, and three others from 
 the closet ; and as the chest contained money of three
 
 102 CASES IN ERROR IN THE 
 
 ALBANY, several persons, and probably in distinct parcels; from 
 
 < a-^'t-fcj 1 these depositions contrasted, it would appear, that though 
 
 it. /urman a bag of money was taken from the chest, it might not be 
 
 j.Coek others, the one containing the money of the complainants ; these 
 
 considerations, and the declaration of the executor deposed 
 
 to by John Moore, that he had got it back again, and the 
 one made by him, related by Sarah Leverick, that some 
 money had been left in every drawer, superadded to which, 
 the inconsistent declarations of the intestate at different 
 times, show that it is totally impracticable to identify the 
 money of the complainants in the hands of the executor, as 
 the money stolen. Here the extraordinary interposition of 
 the executor's oath might attach the loss to the fund in 
 controversy ; but without that, it is clear the discharge can- 
 not be made out. I am therefore of opinion, that the de- 
 fendant, who has admitted assets, is liable for the amount 
 of the proportions of the complainants, and that it ought to 
 be paid with interest, which is a very inadequate compensa- 
 * i03 tlon ^ or l ^ e privations which the complainants have *expe- 
 
 rienced by the non-application of the fund to their support 
 and education. I take it, therefore, it must be referred to 
 a master to settle the account, in doing which he ought te 
 charge the defendant with the one-tenth part of the produc- 
 tion of the real and personal estate of the testator ; with 
 these complainants one-seventh of the shares of Elnathan 
 and James, with the one-fifth of Aletta's share, with in- 
 terest on each sum from three months after the sale, de- 
 ducting the money paid for her maintenance, with the share 
 of the complainants in the personal estate of the testator, 
 calculating the personal property at the selling, and not at 
 the appraised value, and with the complainants' proportion 
 of the two years rent of the testator's real estate with in- 
 terest. 
 
 Riggs, for the respondents. Before the counsel opens 
 on behalf of the appellant, we shall state that it was agreed 
 in the court below, that the suit should proceed, notwith-
 
 STATE OF NEW-YORK. 
 
 standing the death of one of the respondents. That cir- ALBANY, 
 cumstance, however, was available of, only by way of bill \^ y ^+S 
 of revivor,t and cannot be urged now, because in appeal, *' 
 nothing can be insisted on which was not offered below. J. Coe fc others. 
 1 Har. Ch. 454. We shall contend also, that reheanngs | It has been Raid 
 
 c L ^'1n*- tr that no defcnd- 
 
 are applications to the discretion ot the court, s a ant, no.- any who 
 
 those for new trials; and that, as in the one case, a writ J^g^fe 
 of error will not lie for a refusal, so an appeal cannot be *$ 
 maintained in the other, for dismissing. 3 P. Wnu. 8.$ gM^a* 
 Anrl further, that if the appellant was entided to any re- HN^See JWj 
 investigation below, it ought to have been sought by bill of $jwu'sv.'jian~!cs. 
 review, and not by a petition for a rehearing. 1 Har. 
 Ch. 450. 
 
 Bogert. On the first point made below, we have no- 
 thing to complain. The Chancellor's decision has put that at 
 rest. But as to the interest with which we have been 
 charged, we cannot be liable for it, unless it appear we 
 have made the fund productive. It is in evidence it could 
 not be put out, except with great difficulty; and allowing it 
 could, it is settled an executor is not bound to do it. 2 Fonb. 
 184, 185.$ Besides, the executors were ordered to retain $j5ec_ the * 
 in their hands ; whilst doing this, the robbery takes place, 
 and this is from principle, as well as necessity, a full ex- 
 oneration. 2 Fonb. 177, 178. 2 Fez. 240/fi If the facts r/. 8 v.7>.:-* 
 that a robbery was committed, and the money never re- 
 covered, were dubious, an issue ought to have been di- 
 rected. To object, that the appellant's father did not prove ^ 
 the sum taken from him on oath, is *but of little force ; 
 for as at that time, and till his death, no courts were sit- 
 ting, it was impossible to swear to that circumstance in any 
 legal and efficacious manner. The appellant himself could 
 not do it, but in the manner in which he has done, accord- 
 ing to the best information and belief. It is only in cast, c : 
 gross neglect, an executor standing in the relation of trus- 
 tee is ever made liable in chancery. 1 Atk.4M.\ The t/v./fe
 
 104 CASES IN ERROR IN THE 
 
 ALBANY, proof against him must be very strong. 1 Vern. 1444 And 
 that for fear of discouraging people from undertaking 
 It. Furrnau burthensome trusts. 2 Ves. jun. 37. 
 
 V. 
 
 J. Coe & others. 
 
 and Hoffman, contra. In support of the decree 
 
 * Palmer v. ,, , , 
 
 .Tone*. we shall contend, that previous to the robbery, the executor 
 
 Summers v. r , , , , , r , . 
 
 itickman. was guilty ot a most palpable breach ot his trust, and so 
 
 converted the fund ; any subsequent loss, therefore, was of 
 
 his own property, for which we were not to suifer. Bar- 
 
 |f Vernm v. nard> 303.^ 2 Fonb. 169. n. (b.)tt 4 Ves. j un - 620.JJ 
 
 ft"s. ^c. cited The very sale was in violation of his duty. It was at a 
 
 trustee who is t i rne when property was low ; and when even the product 
 
 guilty of a breach cou id not as j s stated by the answer of the appellant 
 
 of trust, is liable 
 
 tolas cestuique himself, be put out to interest ; this too contrary to urgent 
 WHety \.Stace. remonstrances. In addition to these observations, the re- 
 
 A trustee using _ , .... 
 
 trust money hi fusal to apply the portions of the respondents in bringing 
 
 shall be'dwrgea- them up according to the directions of the will, was clearly 
 
 b!e w.th nuerest. ft j Dreac [ 1 o f trust) anc j a conversion of the fund pro tanto. 
 
 however, of the This, upon the principle before laid down, renders the 
 
 cesitii que trust, 
 
 is only a simple trustee answerable for the whole ; and for this we have an 
 
 contract debt, 
 
 unless acknow- authority in the case of Le Giten v. Gouverneur c? Kemblc^ 
 
 ledgcd by the . i r i i 
 
 trustee under in this very court. As to the residue ot the decree, we 
 &fford\.j\ian- repose ourselves on the doctrines and reasons it con- 
 
 ky, Forest. 109. , c enT 
 $5 I Lex Mer. "*Tl 
 
 Ji. 
 
 Troup and Benson, in reply. If the court does not 
 reverse in toto, they will at least order an issue to be di- 
 rected. On the fact of robbery, there is no doubt. The 
 only question is, as to the recovery of the money. If 
 the proof of that is deficient, a jury is the proper tri- 
 bunal, unless the court think it established that it was 
 never regained. As to the case of Le Guen v. Gouver- 
 neur 8? Kemble, that turned on this point. The defend- 
 ants refused to give the plaintiff an authority to re- 
 
 ffll Both the counsel went into very elaborate and lengthy examinations of 
 the testimony in the cause ; but as the decision in the court below, and the 
 opinions in this, contain the essence of the whole, to insert the Ingenious 
 arguments delivered, would not elucidate the point, how much soever they 
 might evince the talents of the speakers.
 
 STATE OF NEW-YORK. * 105 
 
 ceive *his money, to which he was entitled, and which he 
 did not claim, but subject to their lien, after deducting fully 
 its amount. The cases are by no means parallel. By the 
 decision of the Chancellor, interest is ordered, though the J. Coe fc others. 
 robbery is allowed. This is acknowledging the misfortune, 
 yet inflicting a punishment ; for interest is given against a 
 trustee by way of mulct or penalty. In this respect, there- 
 fore, the decree is clearly wrong. So, in allowing the rents 
 of the real estate for two years to be taken into the compu- 
 tation. Till the estate was sold, the rentsf belonged to JJ^ruie js, 
 the heir at law ; for to him the estate descended till the i-tai estate is to 
 
 be sold at all c- 
 
 time of sale. Vt 1s > lul tl -- 
 
 ed into i>ers<-n- 
 
 SPENCER, J. It is proper that I first consider, whether Py*" * 
 the proceedings on the petitions presented by the appellant Crw^Bark* 
 for a rehearing of the cause, after a decree settling all the and the^uot^uf 
 nrincinles, and the dismissing those petitions, is warranted if the prodoet of 
 
 r , T the land he to be 
 
 by the course of proceedings in the court ot chancery. t ,]i v i,iui between 
 appears to me, that the Chancellor disposed of those peti- ^"of >X5 
 tions correctly ; for, as has been insisted on by the respond- J- ffifj** 
 ems' counsel, instead of asking a rehearing, on the disco- ^^"JJj 
 very of new evidence, the application ought to have been for ? .toU>eiriWl. 
 
 . m liiNour ot liic 
 
 a bill of review, upon which the competency of the two wit- heir at law. 
 nesses, Hezeklah Field and Susannah Coe, would have been 
 directly in issue. It was, however, not necessary to have 
 filed articles ; and in Callaghan v. Rochfort, 3 Atk. 643. Ld. 
 Hardwicke decided, that articles were improper, when the 
 objection was to the competency of the witnesses ; but when 
 to their credit, they were proper. The question as to the 
 interest of money upon Long-Island during the war, was 
 certainly a question to which the appellants examined wit- 
 nesses ; and it cannot, with any propriety, be pretended, 
 that he discovered testimony as to the rate of interest, of 
 which he had no knowledge before the passing of publication, 
 or the decree. But, upon any grounds which may be assu- 
 med, as the application to the Chancellor was for n rehearing, 
 in my opinion, the appellant's counsel mistook their remedy.
 
 105 CASES IN ERROR IN THE 
 
 ALBANY, and the Chancellor very properly dismissed the petitions* 
 
 v 18 J-^y * n ma king up my opinion, therefore, I have rejected ail the 
 
 R. Furman exceptions to the testimony of the two witnesses, Hezekiafi 
 
 3. Coe & others Field and Susannah Coe. The first question presenting it- 
 
 self, is, whether there is testimony enough to warrant the 
 
 court in saying, there was a robbery? And, upon this head 
 * 106 of the inquiry, without at all regarding *what William Furman 
 
 said, there cannot remain a doubt. It is proved by the de- 
 positions of three witnesses, who were present at the time 
 the robbery was perpetrated. Abigail Rhode , Mary Boss, 
 and Robert Drummond, depose to the facts. They relate 
 the circumstances, and agree in the principal occurrences 
 more correctly than is common for three persons, who are 
 deposing to an incident twenty-three years after it has hap- 
 pened. There can exist no reasonable ground on which to 
 doubt the robbery. The Chancellor was impressed with its 
 having taken place ; and in truth, the respondents' counsel 
 admitted it. The next important points of inquiry are, 1st. 
 Whether the money which had been paid by Mr. Titus to 
 the executor of Robert Coe> William Furman^ and which ap- 
 pertained to the respondents, was part of the money whereof 
 Mr. Furman was robbed ? and, 2d. Whether this money 
 was ever recovered by Furman ? The law on the subject of 
 bailments, and with respect to the responsibility of fac- 
 tors and trustees, is as firmly settled as on any other subject 
 which can be presented. If the nature of the bailment or 
 trust be such, that the bailee or trustee is to have no reward 
 for his services, the law will not require of him any greater 
 diligence than he usually exercises with regard to his own 
 afVmft isi property ; and it seems well established, "that if a trustee 
 be robbed of the money he received, he shall be allowed it OH 
 account, the robbery being proved, although the sum is only 
 proved by his own oath ; for he was to keep it as his own : 
 so in case of a factor, for he cannot possibly have other 
 proof." And it was correctly said on the argument, by one 
 of the appellant's counsel, that it would be bringing an exe- 
 cutor, in whom the testator reposes such especial confidence,.
 
 STATE OF NEW-YORK, 1Q6 
 
 to a test too severe, when he has proved a robbery, to re- ALBANY, 
 quire of him an identification of the money belonging to the y^^ s*^J 
 cestui que trmt. Such severity would well nigh deter any u. Furmun 
 man from assuming a station of such responsibility, upon j.coe Mothers. 
 the calls of friendship, and without any possible advantage 
 
 to himself. It is objected, that William Furman, the execu- 
 tor of Robert Coe, never made oath, either as to the robbery, 
 or to the identity of the money belonging to the respondents. 
 It has been answered, and I think satisfactorily, that there is 
 no mode pointed out for a trustee, under his situation, to 
 have pursued. Had he made an affidavit, it would have 
 been exdrajudicial, *and of no more importance than his * 107 
 
 own declarations. He could not resort to a court of chan- 
 cery ; because, from the time of the robbery until very near 
 the time of his death, which was in 1783, that court was 
 shut. What means could he have pursued under the then 
 state of things, which he did not ? I confess myself at a loss 
 to perceive any neglect on the part of William Furman, in 
 that respect. If, then, William Furman could not avail him- 
 self of an opportunity to make the oath, which most cer- 
 tainly will, in cases of this kind, protect a person, as to the 
 amount of the sum robbed, what shall we require of him 
 that he did not do ? It appears from the deposition of Ro- 
 bert Drummond, that immediately after the robbers had re- 
 tired, William Furman went with him up stairs, where it is 
 agreed, by all the witnesses, the money was deposited ; and 
 that he then stated to Drummond the amount to be 900/. ; 
 that 30O/. belonged to some orphan children, of the name 
 of Coe; and that he was an executor for the children. Abi- 
 gail Rhodes, who, from her situation and relationship to 
 William Furman, being his daughter, may be presumed to 
 know, states in positive terms, " that apart of the money of 
 which the said William Furman was robbed as aforesaid, 
 was money received of the estate of Robert Coe, deceased, 
 and then in the hands of the said William Furman, sen. as 
 executor of that estate." Mary Boss, who is spoken of as 
 Polly Thompson, also resided in the family of William Fur- 
 
 x
 
 Jor CASES IN ERROR IN THE 
 
 ALBANY, wan. She states, that he was robbed of all the money he 
 
 l804 ' ' had in the house ; and that the next morning she heard him 
 
 ^r^'* U say, that all the money belonging to the grandchildren of 
 
 K. -TurniRn / * 1 " i_ i* 
 
 Robert Ctewas taken by the said robbers, together with his 
 
 J.Coe bothers. ^^ ^^ ^^ ^^ ^ ^^. Q( ^ mQney belong . 
 
 ing to the respondent ; because, on the third of August be- 
 fore the robbery, the other legatees had been paid their pro- 
 portions of the proceeds of the real and personal estate. It 
 appears to me, that, from these facts, taken collectively, (and 
 I know of nothing to detract from them,) it must be mani- 
 fest, that the money belonging to the respondents, and in the 
 hands of William Furman, was taken by the robbers, together 
 with his own. Did William Furman recover this money? 
 The only witness who establishes this fact is John Moore. 
 His character appears to be fair ; to his declaration, there- 
 fore, great weight is to be attached. He says, " that he 
 * 108 heard *WilKam Furman say, he had been robbed of a certa 
 
 sum of money, but that the robbery had been detected, and 
 the money recovered ; and that he had got the same again." 
 To believe this to be correct, is also to believe William Fur- 
 man to have been a most profligate and abandoned charac- 
 ter. That he was otherwise, appears from the confidence 
 reposed in him by Robert Coe, and the proof that he was a 
 man of good character. It is to be again remembered, that 
 John Moore is speaking to a conversation more than twenty 
 years past ; and it would be going too far, to believe that he 
 did not labour under some mistake, when the testimony op- 
 posing this fact shall have been considered and weighed. I f 
 William Furman made the declaration imputed to him by 
 John Moore, there can be no satisfactory reason assigned why 
 it should have been confined to Moore alone ; and most cer- 
 tainly his own family would have been informed of such sin- 
 gular good fortune. Robert Drummond states, that he was 
 sent for to appear as a witness before the court-martial, on 
 the apprehending some men charged with the robbery. He 
 did appear, but could not identify the robbers, in consequence 
 of which they were remanded ; but he never heard or un-
 
 STATE OF NEW-YORK. 108 
 
 derstood, that the money, or any part of it, had been re- ALBANY, 
 stored. This witness had the best means of knowing the ^^^^s 
 fact of the recovery of the money, had it happened. This tt. Furmaa 
 testimony, though negative, in my opinion attbrds a strong j. Coe k others, 
 presumption that it never was reclaimed. Abigail RM& 
 and Mary /tow both unite in declaring, that they never 
 heard that any part of the money taken by the robbers had 
 been recovered ; and it is inconceivable, if the fact had been 
 otherwise, that they should not have heard of it from Mr. 
 Furman. John Gasper asserts, that he heard Mary Boss, 
 some years afterwards, say, "that William Furman had 
 been very lucky, for that he had recovered all the mo- 
 ney he had been robbed of, except a small part." This 
 declaration she denies ever having made; and, admitting 
 that it detracts from her credibility, for having asserted 
 facts not under oath, which she denies when under oath, 
 still the testimony of Drummond and Mrs. Rhodes remains 
 unimpeached. Howard Furman, who appears to have 
 lived in the neighbourhood, heard of the robbery the day 
 after it was committed, but never heard that the money 
 was recovered. Benjamin Coe was told of the robbery 
 *in 1783, by William Furman; and that he had been to * 109 
 
 New-Tork, on the apprehending some soldiers suspected, 
 but he told him he could get no account of the matter. 
 Joseph Robinson was told in 1783, by William Furman, of 
 the robbery ; and that it amounted to 900/. of which 500/. 
 or 600/. belonged to him. He says nothing of its having 
 been recovered. Thomas Burroughs says, he was inform- 
 ed by William Furman of the robbery ; and that he had been 
 sent for to New-York to fetch the money j but he did not 
 fetch it, as the person having the charge of it had gone to 
 Kingsbridge. Susannah Coe says, she has heard William 
 Furman say he was robbed of a purse of money ; that he 
 had seen the purse and the money again in New-Torlt; and 
 that the person in whose charge it was, had gone to Kings- 
 bridge. It is manifest that the last witness, to say the 
 least of her, must have been mistaken ; for, from the testi-
 
 109 CASES IN ERROR IN THE 
 
 ALBANY, mony of Dmmmond and the other witnesses, the money 
 
 v ...^ was in bags ; and ii is somewhat remarkable, that Mr. Fur- 
 
 R. *'ur.-.ia.j man could have st-en the purse and money, when the per- 
 
 J. Coe be 'others. son * n whose charge it was, was absent at Kingsbridge. 
 
 The tt slim <.ny ef Joseph Burroughs presents nothing but 
 
 the vaguest hearsay, and deserves no consideration. Up- 
 on th.- whole, from the strictest examination of the evi- 
 dence in my power, it appears to me, that the weight of 
 evidence is decidedly in favour of the appellant ; that the, 
 money was not recovered : therefore I am for reversing 
 the decree, and dismissing the bill of the respondents with 
 costs in that court. I have not noticed the pretended 
 breach of trust, on the part of William Fun/nan, in dispo- 
 sing of the real estate of Robert Coe at private, rather than 
 public sale. The testimony in the cause abundantly shows 
 that his conduct was fair and honest. If he really mis- 
 judged, in either the time or mode of selling, it will not 
 warrant me in saying, contrary to the proof, that he was 
 guilty of a breach of the trust reposed in him. There are 
 other minor points in the cause, the decision of which is 
 rendered unnecessary, by the opinion I have given. There 
 is one thing yet to be noticed : it is alleged by Susannah 
 Coe, that she applied to William Furtnan for money to pur- 
 chase necessaries for the children, and that he refused, say- 
 ing, " that no person should have money, on account of 
 those legacies, until the children were of age." This, it 
 has been contended, was a conversion of the whole ; or, in 
 
 * 110 other words, that he became answerable *for the whole 
 
 amount in his hands, if it was afterwards robbed, and never 
 recovered. The testimony of Mrs. Coe, on this point, is 
 very loose and inconclusive. She furnishes no dates ; and 
 it is impossible to say, whether her application was before 
 or after the robbery. But to this there is a further answer, 
 that Mrs. Coe had no right to make the demand, unless she 
 was guardian to the children, which she appears not to have 
 been. Mr. FurmarHs refusal to an unauthorized person
 
 STATE OF NEW-YORK. 
 
 110 
 
 cannot, therefore, in law, draw after it the consequences 
 which have been contended for. 
 
 LIVINGSTON, J. The questions in this cause are princi- j 
 pally questions of fact. They involve the robbery of the 
 intestate, and the subsequent recovery of the money. That 
 William Furman was robbed, can admit of no doubt ; the 
 testimony to this point is full and conclusive. His honour 
 the Chancellor regarded it in that light ; nor can any who 
 will read the depositions entertain a different opinion. The 
 want of Fumum's own oath (which indeed could not have 
 been taken, except in an extrajudicial way) is abundantly 
 supplied by other proof. There is as little difficulty in de- 
 termining that the money of the complainants was taken, 
 as well as his own. Some of the witnesses, who establish 
 the robbery, expressly state that part of the money of 
 which he was robbed belonged to the estate of Robert Coe, 
 deceased. Considering the manner of the robbery, which 
 was perpetrated in the night, by several armed men, who 
 must of course have had a complete control over the dwell- 
 ing-house and all its inhabitants, it is not probable they left 
 any money, worth speaking of, behind. Whether the mo- 
 ney was regained, is a question of more difficulty; and yet 
 on the proof before us, my opinion would be in the nega- 
 tive. There is no one witness, except John Moore, who 
 deposes affirmatively on this point ; and although a man of 
 character, it is probable either that he has committed some 
 mistake, which would not be extraordinary, after so great 
 a lapse of time, or that some circumstance is omitted, as to 
 time and place, which would give a very different com- 
 plexion to his testimony. Perhaps the declaration of Fur- 
 man, which he speaks of, was made after he had heard of 
 the detection of the robbers, and when he of course ex- 
 pected to recover the money. Some explanation is wanted 
 from this witness, to reconcile his testimony with the de- 
 claration of the other witnesses, and the conduct of Furman 
 to other persons. How ^happens it, that none of the per- 
 
 ALBANY, 
 
 R Furman 
 
 Coe ^ ot i, ers . 
 
 * 1 1 1
 
 Hi CASES IN ERROR IN THE 
 
 ALBANY, sons who resided in his family ever heard this money was 
 
 v ^ 8o4 - recovered, or that Furman, who bore the character of an 
 
 R. Furman honest man, never mentioned so important a circumsUmce 
 
 T Coe & others, to any but Mr. Moore ? Or that the recovery of this n, .~y 
 
 ' did not become a matter of as great, or indeed greater, 
 
 notoriety in the neighbourhood, than the robbery ? The 
 money could not have been returned in secret. It would 
 have been known to many ; it would have been the subject 
 of conversation throughout the neighbourhood ; it would 
 not have been in the power of an artful man to have sup- 
 pressed a knowledge of such an incident. An honest man, 
 as Furman was, would have had no motive to attempt it. 
 But notwithstanding the strong inclination of my opinion 
 in favour of the appellant on this point, it is one of those 
 fcases which ought to be submitted to a jury. A more full 
 and satisfactory examination can thus take place, and there 
 will be less danger of error in that way, than if we take the 
 decision of it upon ourselves. My opinion therefore is, 
 that his honour the Chancellor be ordered to direct a feign- 
 ed issue to be tried between the parties at common law, to 
 determine whether any and what part of the moneys of 
 which William Furman, as executor to the last will and 
 testament of Robert Coe, deceased, was robbed, during the 
 late war between the United States and Great Britain, was 
 at any tune and when recovered by him ; and that all fur- 
 ther directions be reserved, until the trial of such issue. 
 Some complaint was made against the sale of the real 
 estate. This complaint was without cause. The Chan- 
 cellor considered it so ; and I entirely concur in this part 
 of his opinion. The sale was fair, well intended, for a full 
 value, and I think well-timed. Although money produced 
 little or no interest on Long-Island, during the war, the 
 farm would not have yielded any great rent, and might, 
 nnd probably would have suffered much. It was also said 
 that William Furman, by refusing to advance any money to 
 Susannah Coe, for the complainants' support, was guilty of 
 a breach of trust, and on the principle established in the
 
 STATE OF NEW-YORK. 
 
 case of Le Guen v. Gowcrneur &? Kemble, he became 
 liable, from that moment, for the whole fund in his hands, 
 and that therefore no subsequent robbery could shield him 
 from a responsibility to that extent. I cannot perceive 
 how the case cited bears on the one under review. In Le - 
 Guen v. Gouverneur* fc? Kemble, nothing more was decided, 
 according to my understanding of it, than that factors, who 
 were in advance, and under heavy responsibilities for their 
 principal, had no lien on his securities in their hands, and 
 that in a special action on the case against them for mis- 
 conduct, it was not only unnecessary in the plaintiff to 
 prove a special damage, but incompetent for the defend- 
 ant to show their principal had been benefited by this al- 
 leged misconduct. If Furman was guilty of a breach of 
 trust, it could only be for so much as was necessary for 
 the support of these children ; but that could not affect the 
 surplue, which must have remained in his hands after ad- 
 vancing what Susannah Coe asked of him. It is however 
 sufficient to say, that Mrs. Coe had no right to make this 
 demand, and that it does not appear with sufficient certain- 
 ty that it was made. 
 
 In this last opinion KENT, J. concurred, contra LEWIS, 
 C. J. who, with the majority of the court, being for a re- 
 versal, the decree was accordingly reversed in toto. 
 
 Ill 
 
 ALBANY, 
 
 R Furman 
 Coe others>
 
 "2 CASES IN ERROR IN THE 
 
 James Grant and others, Appellants, 
 And the President, Directors, and } 
 
 Company of the Bank of the United > Respondents. 
 States, ) 
 
 James Grant, Appellant, 
 
 And James Bissett, Nathaniel Law- 
 rence, Thomas Morton, the Presi- 
 dent, Directors, and Company of 
 the Bank of the United States, 
 Richardson Underbill, and Henry 
 Remsen, 
 
 Registered JAMES BISSETT, being seised in fee of four lots in 
 
 mortgages must . 
 
 be paid off ae- the city of Nexv-Tork, on the 10th of May, 1800, mortgaged 
 
 cording to the /^ , > ? r i r i r** 
 
 dates of their to Peter Undcrdonk in tee, three ot them, tor jsl, 125. On the 
 l c ^ lOth of the same month, this mortgage was duly registered, 
 
 ing does not ap- anc j snO rtly after fairly assigned to the president, directors 
 
 ply between re- f 
 
 gistered mortga- and company of the bank of the United States, for a full con- 
 ges. 
 
 sideration. On the 12th Qijune, 1800, Bissett mortgaged all 
 
 * 113 *the four lots to John Taylor, in consideration of $2,5OO. 
 
 This consideration was made up in the following manner : 
 g>506 cash paid to Bissett ; 857 agreed to be laid out on 
 the premises, and Si, 147 in debts due to Taylor and others, 
 assumed by him on account of the mortgagor. On the 
 27th of the same month of June, Taylor assigned the bond 
 and mortgage to Alexander McGregor, who refunded to Tay- 
 lor g>476 he had paid to Bissett, and entered into the respon- 
 sibilities Taylor had assumed, for the performance of which 
 McGregor offered to give Bissett his bond. On the day fol- 
 lowing, the 28th, this mortgage also was duly registered. On 
 the 2d of July following, Bissett mortgaged to the president, 
 directors, and company of the bank of the United States, for 
 $ 1,950, the three lots before mortgaged to Onderdonk, and 
 they, on the same day, caused their mortgage to be duly re- 
 gistered. On the third of June, 1801, M'-Gregor assigned to
 
 STATE OF NEW- YORK. 113 
 
 James Grant, the appellant, the mortgage to Taylor. After ALBANY, 
 these transactions, Bissett becoming a bankrupt, the bank t _ ||| _ ' L^/ 
 filed a bill in chancery against him, his assignees, Taylor, j. Gra nt and 
 McGregor, the appellant, and several others of the mortgage ot ^ ers 
 and judgment creditors of Bissett, praying that they might u j 
 be ordered to come in and redeem both the mortgage to 
 Onderdonk, and that to the bank, or that the premises might others. 
 be sold to discharge what was due upon them. To this ~ 
 bill Grant appeared and answered, insisting that as the bond 
 fide holder, by assignment of the mortgage second in date 
 and time of registering, he had a right to be paid out of the 
 mortgaged premises next after the mortgage to Onderdonk. 
 Grant, as assignee of the mortgage to Taylor, filed also his 
 bill against Bissett, his assignees, the president, directors, 
 and company of the bank of the United States, and other 
 mortgage creditors of Bissett, praying that the lot of ground 
 mortgaged to Taylor, and not included in the mortgage to 
 Onderdonk, might be sold, and the proceeds applied exclu- 
 sively to the discharge of Taylor's mortgage ; and as to the 
 other three lots, that they might be sold, and the money 
 arising thereby, be appropriated in the first place to the pay- 
 ment of the mortgage to Onderdonk, and after satisfying the 
 same, that the surplus should go to make up the deficiency, 
 if any, which might arise in satisfying the mortgage to Tay- 
 lor, by the sale of the fourth lot. To this latter bill all the 
 defendants, except *the president, directors, and company of * 
 
 the bank of the United States, appeared, answered severally, 
 and virtually disclaimed or submitted to the judgment of 
 the court. The bank, however, answering under their 
 common seal, alleged, that when they took their mortgage 
 on the 2d of July, 1 800, they had no notice of that to Tay- 
 lor ^ and that holding the first mortgage in fee to Onderdonk, 
 they had a right to insist on being first paid the amount of 
 both securities. They also alleged fraud in Taylor, in pro- 
 curing his mortgage from Bissett. Both causes being at is- 
 sue, came on by consent together. In that by the bank of 
 the United States, the complainants did not examine any
 
 114 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 1804. 
 
 U. S. Bank. 
 J. Grant 
 
 v. 
 
 J. Bissett and 
 others. 
 
 * 115 
 
 witnesses. In that by Grant, he examined two witnesses, 
 who were cross-examined by the bank, one of whom proved 
 personal notice of the mortgage to Taylor, to one of the di- 
 rectors before the mortgage to the bank, and both proved the 
 mortgage held by Grant to have been given for a full con- 
 sideration. The only evidence to impeach this, was derived 
 from an answer of one of the persons made a co-defendant 
 with Grant^ against the reading of which he strenuously ob- 
 jected. It was, however, decreed, that the bank should be 
 first paid out of the proceeds of the sales of the three lots, 
 the amount due on both the mortgages, held by them, be- 
 fore any part thereof should be applied to the satisfaction of 
 the mortgage held by Grant, which it was decreed should 
 not be deemed a valid security for the amount mentioned 
 therein ; but that it should be referred to a master, to in- 
 quire what part thereof had been actually advanced to, or 
 for the use of Bissett, either by Taylor or McGregor, and 
 that so much only as the master should find and report thus 
 due, should be allowed and paid to Grant, in satisfaction of 
 his mortgage, out of the proceeds of any of the mortgaged 
 premises. These decrees being appealed from, his honour 
 the Chancellor now assigned his reasons. 
 
 Mr. President On this case, it will be necessary to de- 
 termine, 1. In what order the mortgages in question are to 
 be satisfied ? 2dly. What ought to be the amount of satis- 
 faction, as to the one executed to Taylor ? As connected 
 with the first question, the right oftac&inghas been denied ; 
 but our registering act, it appears to me, is not dissimilar in 
 its provisions, and certainly similar in its object, to those re- 
 ferred to in the authorities cited. Both the British and our 
 *act are calculated to afford a test, to determine the priority 
 of satisfaction, as relating to mortgages on the same subject, 
 leaving all other legal and equitable consequences to attach, 
 as if the registry had not existed. I take it, therefore, the 
 doctrine of tacking has not been altered by our statute, re- 
 quiring the registry of mortgages. The complainants, hi
 
 STATE OF NEW-YORK. 
 
 their answer to the bill of the defendant, Grant expressly de- ALBANY, 
 ny their knowledge of the existence of the mortgage to Toy- v ^ ^-i_ J 
 for, and his deposition discloses no facts which can affect J. Grant and 
 
 others 
 
 them with notice prior to the execution of the mortgage to v 
 
 . . U. S. Bank. 
 
 them ; for, though he deposes that he gave the information j. Grant 
 of the circumstances attending the taking of his mortgage to j B ; SS ett and 
 Robert Lenox, one of the directors, he does not ascertain _ * e "' 
 the time otherwise than by declaring, that "he thinks it was 
 before the said president and directors had taken their mort- 
 gage" This is too vague and indeterminate, and hence it 
 is not necessary to give an opinion on the question, whe- 
 ther the notice, if fully proved, was well given to a director ? 
 If the complainants had no notice of the existence of Tay-> 
 lor's mortgage, they are completely within the rules adopted 
 by this court, on the subject of tacking; but it can app ly on- 
 ly to the lots mortgaged to them, and the fourth lot must be 
 exclusively appropriated to satisfy the mortgage to 7 Baylor ; 
 but it appears that g857 79 cts. of the sum, for which it pur- 
 ports to' have been given, were to be applied to the improve- 
 ment of the mortgaged premises, and there is no evidence 
 that it has been so applied : and it appears from the an- 
 swers and depositions of the defendants, that this point, 
 though that was not necessary, as they took their assign- 
 ments subject to all equities, has been invariably attended 
 to, in the several transmutations of the mortgage. Hence, 
 there is not the least ground for permitting it to be retain- 
 ed by Grant, the assignee. It must, therefore, be referred 
 to a master, to ascertain the amount due on the two mort- 
 gages to the complainants and Ondcrdonk, and the sum due 
 on the mortgage executed to Taylor ; but in making the 
 statement on the latter, the sum of g857 79 cts. with the in- 
 terest accrued thereon, must be deducted, unless it shall ap- 
 pear to the master that any part of that sum has been ac- 
 tually applied to finishing the houses erected on the mort- 
 gaged premises, in which case proper allowances must be 
 * for the expenditure. The question of costs, and all
 
 116* 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 1804. 
 
 J. Grant and 
 others 
 
 other directions, *to be reserved, until the coming in of the 
 master's report. 
 
 TJ. S. Bank. 
 J. Grant 
 
 others. 
 
 Riggs, for the appellant. We come before this court, 
 insisting on the right of James Grant, as holder of a second 
 j( Bissett and mortgage, duly registered, to be satisfied in preference to 
 a third mortgage, given and. registered subsequent to the 
 second, though such third mortgage is held by the same 
 person who has a first mortgage, registered previous to our 
 second. Against this right, the English doctrine of tack- 
 ing is relied on. But with them there is no general regis- 
 ter act, as with us. Their statutes on this subject are par- 
 tial laws ; and among the variety of decisions reported up- 
 on them, there is not one where the contest has been be- 
 tween two registered mortgages. It may not, however, be 
 useless to examine how far, on the principles of the British 
 adjudications, their rules will apply to, and support, the 
 present decree. It is a maxim with them, that, if a first 
 mortgage be purchased in, to aid a junior encumbrance, 
 such first mortgage must be forfeited. 1 Pow. on Mort. 
 531. In the present case, the mortgage money was not 
 payable before the end of the year, and the assignment to 
 the bank was within four months. On this ground, there- 
 fore, the law is against the bank. There is also another. 
 To enable a puisne mortgagee to tack, he must have lent 
 his money without notice of the mesne encumbrances. 1 
 v. Ld. Pow. on Mort. 537. 3 Atk. 238. j 2 Vern. 271 4 2 Fonb. 
 
 * 'Blunders v. *01. n. (b). The evidence of notice to the bank is com- 
 Dehetv. plete. Their denial not being upon oath, but under seal, 
 
 cannot weigh against the testimony of Taylor, and is in 
 itself an absolute nullity. For as a body corporate, having 
 neither soul nor conscience, they cannot be sworn, and are 
 not liable to be punished for perjury. Against them, there- 
 fore, and their denial, the evidence of one witness is suf- 
 ficient, though, unaccompanied by circumstances, it might 
 not avail against a natural person. Though the notice was 
 not to the president, yet, being to a director, it is good pre-
 
 STATE OF NEWVYORK. 116 
 
 sumptive notice ; and by such, a parry is as much affected, ALBANY, 
 as by actual intimation. 2 Fonb. 146 to 155. Besides, as 
 our act is general,! the registering alone ought to be con- J - 
 
 sidered as notice. It is enough to set a person on inquiry, 
 
 U. S. Bane, 
 and that has always been held sufficient to affect with no- J. Grant 
 
 y 
 
 tice. 1 D. & E. 755.$ With us, registering is like j. Bissett ami 
 docketing of judgments, and that is invariably deemed to ^ ' U!> ' i 
 
 *make a purchaser take subject to the charge. Mr. Poiv- fin Collet*. D* 
 
 . . , Galls and Ward, 
 
 ell, in his treatise,^ does, we admit, state as his opinion, jFVrmf.65:itwM 
 that the doctrine of tacking would be allowed between re- ^w^ion in 
 gistered mortgages. It is, however, but his opinion, and [J ^JjJJJ * 
 that upon the operation of the 2 and 3 Anne* c. 4. and the commission of 
 
 bankrupt, is no- 
 
 7 Anne, c. 20. But those statutes have not such words as tice to all ti.e 
 
 World, because 
 
 our act. Our law says,^[ " In case of several mortgages S uch as is pn- 
 
 c , scribed liy an acr. 
 
 of the same premises, or any part thereof, the mortgage or oi - parliament, m 
 mortgages which shall be first registered, shall have prefer- *f*^\l im^ied! 
 ence in all courts of law and equity, according to the times ^ ioo< ^ le v ' 
 of the registry of such mortgages respectively." If the de- * 117 
 
 cree complained of is permitted to stand, this part of the \\.*JT,. Lav t 
 act is repealed. As to the sums actually advanced by Tay- 4Si 
 lor, McGregor and Grant, if any investigation of them was 
 to take place, it ought to have been by examination of wit- 
 nesses, and not before the master ; besides, it is sworn that 
 they were to the full value, and against this the answer of a 
 co-defendant could not be read ; for there is no rule better 
 established, than that the answer of one defendant shall not 
 
 be read against another.** 2 Ves. jun. ll.ff ZAtk. 303.t ** Where th~ 
 
 defendant i>i - - 
 
 Ib'ld. 39. fcsscs not to re- 
 
 collect, but stales 
 
 that another ik - 
 
 __ rr , ( * i T . .... fondant knows 
 
 Van Vechten, for the respondents. It is a settled princi- (h(! tacl) , I|0 an . 
 pie, that where equitable and legal titles unite, they shall jjjjjjj ^ ^J- 
 overbalance those which are merely equitable. For the ferred to maybe 
 
 rend ii^aiiibl lain. 
 
 equities being equal, neither the one nor the other has, on i J'. n'mx. ;; >u 
 
 tj JOHI-S v. Ttir- 
 
 the score of conscience, any claim to a preference over the berviUe. 
 
 . ' i i r r i- i tt IsOfk'toood v. 
 
 other ; there can then exist no kind ol reason lor disturb- /.>,.,.. 
 
 ing or taking away the legal rights and estate of the other. 
 The courts have, therefore, always left the party having
 
 117 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 1804. 
 
 J. Bissett and 
 others. 
 
 \: 
 
 H&gihaw 
 
 ates. 
 
 * 118 
 
 both the legal and equitable estate, in full possession of his 
 rights. 2 Pow. on Mart. 636 to 644. Wherever legal and 
 equitable estates meet, the union is held to destroy all mesne 
 equities. Stra. 240. f From these positions has been de- 
 rived the doctrine of tacking. The act does not vary the 
 law on this point. It orders, that they shall be paid accord- 
 ing to the dates of their registering, that is, where there is 
 only a set of successive encumbrances regularly appearing. 
 But it does not prevent attaching to the first registered 
 mortgage subsequent rights, which enable the puisne mort- 
 gagee to protect his estate, by that which he acquires. For 
 as the act is meant to operate only between registered and 
 unregistered mortgages, when all are registered, they stand 
 as if the act had never passed. The puisne mortgagee *has, 
 by his diligence, acquired a preference. If the registering 
 is to be notice, then the second mortgagee has been guilty 
 of a laches, in not purchasing in the first mortgage, to pro- 
 tect himself. Not having done so, we had a right to do it, 
 and to cover our equitable, by Onderdonft s legal estate. 
 The difference between the effect of general and particular 
 statutes, is imaginary. The only actual one is, that under 
 one, you must search in all cases ; under the other, only in 
 those arising within a specific county. The principles to 
 regulate in each are the same, for the law is in both the 
 same, though the limits within which it is to be applied are 
 different. The notice relied on, was not given to the pro- 
 per person ; it ought to have been to the head of the corpo- 
 ration, the president. It is not, however, sufficiently al- 
 leged ; it is merely " as he thinks." It ought to have been 
 strongly evidenced, and such as to almost impute a fraud. 2 
 PGW. on Mart. 639. Jollandv. Stainbridge, 3 Ves. jun. 478. 
 But, allowing all the force asserted to the provisions of our 
 act, still it can never be contended, that they were meant, by 
 merely registering, to protect fraud. It is in evidence, from 
 the confessions of one of the defendants, that the full value 
 for which the mortgage was given, has not been paid ; and 
 as Grant, in his answer, states his title to have been derived 
 2
 
 STATE OF NEW- YORK. 118 
 
 from Taylor, he refers to what Taylor says respecting that ALBANY, 
 
 , . . , r i -L 1804. 
 
 title, and makes his anwer evidence lor the reasons in the i_ < _ i 
 anonymous case, in 1 P. Wins. SOO.f and Wyatfs Prac. J. Grant and 
 
 n /- others 
 
 Reg. 75. v . 
 
 U. S. Bank. 
 J. Grant 
 
 Hamilton, in replv. Allowing the doctrines of the other , . v - 
 
 1 > J. Bissett and 
 
 side to be correct, as to the reasons on which tacking has others. 
 been introduced, and that the registering a mortgage is no- -j-see 071^.11 7. 
 tice to the second mortgagee, it must equally be so to the note there * 
 third, and then a third mortgagee can never stand on equal 
 equity with a second. This, therefore, subverts all the ar- 
 gument, as to the equal equity on which tacking is said 
 partly to rest. But the decisions in England can never, on 
 this subject, be applicable to cases here. The words of our 
 law take them out of the operation of the English prece- 
 dents. They proceed on the settled maxims of their courts. 
 They are not directed or controlled by the statute la%v ; for 
 the 2d and 3d and the 7th of Anne, do not propose the regu- 
 lation of registered securities. The act of our legislature 
 was framed for the purpose of settling their priorities. Its 
 object was to secure lenders of money. *This cannot be ef- * 119 
 
 fected, if the construction on the other side prevail. A se- 
 cond mortgagee, after due search, may repose on the estate 
 being adequate to the payment of his demand, and that of 
 his senior encumbrancer ; the very next day a cunning or 
 colluding third person, lends a further sum, takes in the first 
 mortgage, and cuts out the second. The principle of tack- 
 ing encourages fraud ; it supersedes that necessity of search- 
 ing public offices, which ought always to be induced, when 
 title deeds are not shown to the lender. This not being done, 
 ought to lead to inquiry, the neglect of which is what the 
 Lord Chancellor, in 1 Eq. Cos. 331. calls filthy negligence.^ $ Crassa 
 The express words of our law are our reliance. They de- ? 
 stroy all that system of artificial reasoning, as to taking in 
 the legal estate to protect the equitable ; for, by the act, a 
 priority at law is given to a second registered mortgage over 
 a third; nay, it gives also interminis a superior equity, and
 
 119 
 
 CASES IN ERROR IN THE 
 
 ALB.VXY, 
 
 1804. 
 
 J. Grant and 
 
 ot'icrs 
 
 U. S. Bank. 
 J. Grant 
 
 v. 
 
 ,T. Bissctt and 
 others. 
 
 * 120 
 
 this on equitable principles ; for, where there is a law or- 
 daining a registry to be made ot mortgages, search and in- 
 quiry at the office is at least an equitable duty. As to che 
 denia ! of notice by the bank, under their seal, it is enough 
 to say, the only reason why an answer is evidence, is from 
 being under oath. Whatever is not so, cannot be testimony, 
 except as to records, and cases of confession. That there 
 was not an original full valuable consideratien from Taylor, 
 allowing it to be so, is nothing to Grant; for a transferable 
 security, though, in its origin made on a less consideration 
 than it purports, becomes, in the hands of a bond fide as- 
 signee, operative to its full amount. Even fraud, except 
 where positive law creates the security, is, by a fair assign- 
 ment, for full and valuable consideration, purged, so far as 
 it respects the assignee. The inquiry, therefore, into the 
 sums advanced by Taylor and McGregor, is not to be sup- 
 ported. The nature of the considerations cannot be ques- 
 tioned. Money paid, money to be laid out, and assumptions 
 of debts both law and equity must, and do, allow their va- 
 lidity. On every ground, therefore, we contend the decree 
 must be reversed. 
 
 SPENCER, J. The Chancellor has adopted the rule of the 
 court of chancery in England, which is, that where parties 
 have equal equity, and one of them has a legal advantage, 
 not to deprive the one of the legal preference he has obtained. 
 That this rule is established there, I fully agree ; and, unless 
 our statute has created a rule on this subject peculiar to our 
 *own jurisprudence, I shall acquiesce in this part of the de- 
 cision. For, I do not think that the registering the mort- 
 gage is upon legal principles notice of its existence ; though, 
 were the point now for the first time to be decided, I should 
 concur that it ought so to be considered; the contrary, how- 
 ever, is too well established to be drawn in question. Nor 
 do I consider the notice given by Mr. Taylor to Robert Le- 
 nox, either actual or constructive notice. It is left quite un- 
 certain at what period this notice was in fact given ; and, if
 
 STATE OF NEW-YORK. 
 
 given in time, it does not appear that Mr. Lenox was pre- ALBANY, 
 sent, when Bissctt became indebted to the bank, or gave the 
 mortgage, or that Mr. Lenox ever communicated it to the 
 board. They deny such notice by their answer; and, al- 
 though it, is not, nor could it be under oath, yet it is cer- 
 tainly sufficient to repel the vague testimony of Mr. Taylor. 
 This brings me to the consideration of our statute concerning 
 mortgages. It provides, that, " in case of several mort- 
 gages of the same premises, or any part thereof, the mort- 
 gage or mortgages, which shall be first registered, shall have 
 preference in all courts of law and equity, according to 
 the times of the registry of such mortgages respectively." 
 It appears to me, that the statute has abolished, with respect 
 to registered mortgages, the right of tacking a junior to a 
 senior mortgage, and thus excluding an intervening one. 
 They are to have preference in all courts of law and equity, 
 according to the times of their respective registry. To 
 allow a junior mortgage to be paid first, is denying to an 
 elder mortgage the preference the statute has given. The 
 statutes of 2d and 3d Anne, c. 4. and 7th Anne, c. 20. 
 though affording a preference to registered over unregis- 
 tered mortgages, do not determine, as our statute does, the 
 preference they are to have, or in what order registered 
 mortgages are to be redeemed or satisfied. Though it was 
 truly observed by the appellants' counsel, that there are no 
 decisions in England to be met with, denying the principle 
 now advanced. I am, therefore, of opinion, that in this re- 
 spect, the decree of his honour the Chancellor ought to be 
 reversed. The remaining question is, whether the mort- 
 gage held by Grant is to be considered a valid security, for 
 the amount therein mentioned, and thereby secured ? It will 
 be proper, first, to consider, what is, and what is not evidence 
 in the cause. In the bill filed by the bank against Grant 
 and Bothers, John Taylor and Alexander JWGivgor are made * 121 
 
 co-defendants, and the respondents' counsel, considering some- 
 parts of their answers as operating in their favour, have 
 dwelt upon the facts disclosed by them. I have no hesitation
 
 121 CASES IN ERROR IN THE 
 
 ALBANY, in saying, that the answer of one co-defendant is evidence 
 neither for nor against the other. The authorities cited 
 maintain this position. It appears from exhibits and testi 
 
 mony, that the consideration of the mortgage given by Bis- 
 U. S . Bank. ,._ D . 
 
 J. Grant sett to Taylor, was money advanced by lay lor to JHi&sett, 
 
 J. Bissett and money owing by Bissett, and assumed to be paid by Tay- 
 _ lor, and a balance of between 800 and S90O, to be paid in 
 
 i P. Wms. 300. finishing certain houses on lots included in the mortgage. 
 a Jltk. 303. Ibid. , . ,- -, j 
 
 39. It appears that Taylor, about the 20th of June, assumed 
 
 debts, and became responsible to Btsseti's creditors, to the- 
 amount of about l, 000, besides the sum advanced. It 
 further appears, that Alexander McGregor, to whom the 
 mortgage was assigned by Taylor, as a consideration lor 
 that assignment, refunded money to Taylor, which he ad- 
 vanced to Bissett, and also, for the purpose of securing a 
 small demand he had against Bissett in his own right, and 
 another, as administrator of one Cunningham, and also, in 
 consideration of his becoming responsible to sundry persons, 
 for claims which they had against Bissett. For the per- 
 formance of the agreement thus made by McGregor, he ex- 
 ecuted his bond to Taylor* and he offered to Bissett to gua- 
 ranty its fulfilment. Though the business was transacted 
 loosely between Bissett and Taylor, it appears to me, there 
 exists no pretence of fraud ; and as to the validity of such 
 consideration, I have as little doubt. Under these circum- 
 stances, the mortgage originally given to Taylor, was as- 
 signed to Grant. There is nothing tending to show that 
 Grant did not advance the full amount of the consideration, 
 if the answer of McGregor be not evidence, and that it is not, 
 I have before said. I am of opinion, that the decree be 
 reversed ; that after applying the proceeds of the one lot, 
 included in the mortgage to Taylor and not in the others, to- 
 wards the satisfaction of the mortgage held by Grant, the 
 proceeds of the sale of the three lots, after satisfying the 
 principal and interest due on the mortgage to Onderdonk, 
 and held by the bank, be applied to the satisfaction of the 
 principal and interest of the mortgage held by Grant* con-
 
 STATE OF NEW-YORK. 
 
 sldering the same as a valid security for the entire sum men- 
 tioned therein, and secured thereby. 
 
 *The other judges and residue of the court concurring, 
 the decree was unanimously reversed. LEWIS, C. J. how- 
 ever, observed, that he thought the mere registering a mort- 
 gage was notice to subsequent encumbrances. 
 
 121 
 
 ALBANY, 
 
 1 S04. 
 
 J. Grant and 
 others 
 
 U. S. Bank. 
 J. Grant 
 
 v. 
 
 J. Bissett ami 
 others. 
 
 * 122 
 
 Marshall and William Jenkins, Appellants, 
 
 And Catherine De Groot, adminis-? 
 
 r r> T- r> Q Respondent. 
 
 tratrix of Peter De Groot, J 
 
 THIS was an appeal from chancery, in which the facts if one of three 
 
 joint makers ota 
 
 appeared to be these : Barnes Goslin, iun. John Goslin, and promiwory now 
 
 , , . . . . f .,, die solvent, ami 
 
 Peter De Groat, made their joint promissory note tor 13o/. t he two survi- 
 1s. 2d. payable to the appellants four months afterdate. Pe- *"^ eq ui ty will 
 ter De Groot died intestate. The appellants prosecuted the J||J jE'sTts 
 surviving makers of the note to judgment, issued into the of the deceased. 
 county where they resided a. fi.fa. which was returned nulla 
 bona, and they have since become insolvent, but the re- 
 spondent has sufficient assets from the intestate to satisfy 
 the debt. The bill prayed that the respondent might be 
 compelled to pay the demand, but on a general demurrer 
 the Chancellor was pleased to dismiss the bill with costs, 
 and thus assigned his reasons : 
 
 Mr. President From the authorities cited on the argu- 
 ment, it abundantly appears, that courts of equity are not 
 favourable to the common law doctrine of survivorship in 
 cases of this kind, and that they have shown a disposition 
 to avail themselves of circumstances to avoid its effects. 
 Thus the words of a condition of a joint bond have been re- 
 sorted to, for the purpose of eluding the operation of this 
 strict rule of law. The application of the money borrowed 
 to the concerns of a joint trade, and the obligor's drawing
 
 122 CASES IN ERROR IN THE 
 
 ALBANY, the bond himself jointly, have been admitted as circunjy 
 \^-^L^i stances to relax the operation of that rule ; but none of the 
 Marshall and cases go the length of deciding that, divested of circumstances, 
 William Jenkins ^ obligat ; on o f a joint contract is to attach, as well to the 
 representatives of the dead, as to the survivor of the con- 
 tracting parties. This case presents the naked facts of a 
 joint debt and survivorship ; and, I think, must be deter- 
 mined on the rule which obtains at law, and if so, the bill 
 cannot be sustained. In giving this opinion, I regret that 
 * 123 the rule is so well established, as to *oblige me to conform to 
 
 it. The inclination of my mind was to afford relief, if I 
 could discover any principles which would bear me out in 
 it ; but, thinking as I do, respecting the legal principles go- 
 verning this case, I dismissed the bill with costs. 
 
 The respondent not appearing to argue the cause, it 
 was heard ex parte. 
 
 Per Curiam delivered by THOMPSON, J. The facts stated 
 in the bill are admitted by the demurrer to be true. The 
 only question, therefore presented to the court, is whether, 
 where three persons make a promissory note, one dies in- 
 testate, but solvent, and the two survivors become insol- 
 vent, the estate of the deceased can in equity be charged with 
 the payment of the note ? I have not been able to discover 
 any principles of justice on which it can be exonerated. It 
 is a rule applicable to proceedings in courts of law, that where 
 two are jointly bound, and one dies, the survivor must be 
 prosecuted, and an action cannot be maintained against the 
 representatives of the deceased. This, however, is a rule 
 controlling the remedy, and not determining the right. 
 Courts of equity daily give relief where the remedy at law 
 is extinguished. The three makers of this note, as to this 
 transaction, are considered in the light of partners, and the 
 consideration received by them was for the mutual benefit 
 of them all; and although this consideration, whatever it 
 might be, may survive, unless severed during the life-time 
 3
 
 STATE OF NEW-YORK. 123 
 
 of the intestate, yet the survivors are considered, in equity, ALBANY, 
 as the trustees for the representatives of the deceased, for his \ ^j^*!/ 
 proportion. Rights claimed by, and injuries arising from, Marshall ami 
 
 J _ ' William Jenkias 
 
 survivorship, are not viewed in a very tavourable aspect, v. 
 
 either at law or in equity. I have looked into the cases re- '__ 
 
 ferred to by the appellants' counsel, which I think fully 
 establish and warrant both the right and practice of courts 
 of equity, giving relief in cases of this description. The 
 survivors are insolvent. The deceased left assets sufficient 
 to pay this and other just demands against his estate. The 
 appellants are without remedy at law, and I see no reason 
 why equity should not give relief. I am, therefore, of opi- 
 nion, that the decree of his honour the Chancellor ought to 
 be reversed.
 
 INDEX 
 
 OF THE PRINCIPAL MATTERS. 
 
 N. B. The Numerals refer to the page in the Introduction. 
 
 Abandonment. 
 
 See Insurance, 1. 
 
 Account. 
 
 See Executor, 1. 
 
 Acts of Congress construed and ex- 
 pounded. 
 
 1. An Act to suspend the commercial inter- 
 course between the United States and 
 France, and the dependencies thereof, 43 
 
 2. An Act further to suspend the commercial 
 intercourse between the United States and 
 France, and the dependencies thereof, 43 
 
 Acts of the Legislature construed 
 and expounded. 
 
 1. Act concerning Mortgages, 1 
 
 2. Act concerning Judgments and Execu- 
 tions, 47 
 
 3- Act to establish a Turnpike Corporation, 
 for improving the road from New-Lebanon 
 to the city of Hudson, 8G 
 
 Action. 
 
 See Turnpike Acts, 1. 
 
 Affidavit. 
 
 See Practice, 2. 
 
 Articles. 
 Ste Practice, |. 
 
 B 
 
 Bill to Account. 
 
 See Executor, 1. 
 
 Bill of Discovery. 
 
 See Practice, 2. 
 
 Bill of Review. 
 
 See Practice, 1. 
 
 Bond. 
 
 See Mortgage, 2. 
 
 c 
 
 Capture. 
 
 See Insurance, 1. 
 
 Chancery. 
 See Practice, 1. 
 
 Concealment, 
 
 See Insurance, 4. 
 
 Contraband Trade. 
 
 See Insurance, 5. 
 
 Corporations. 
 
 See Turnpike Acts, 1. 
 
 D 
 
 Demurrer. 
 See Practice, 2.
 
 126 
 
 INDEX. 
 
 Distress. 
 
 See Insurance, 2. 
 
 Emigration. 
 
 See Insurance, 4. 
 
 Equity. 
 
 Sec Promissory Note, I. 
 
 Equity of Redemption. 
 
 See Mortgage, 1. 
 
 I. T5v the words of our law, an Equity of Re- 
 demption is saleable l>v a shei iff under a 
 f-Ja. Waters and otlicrs-v. Stewart, 47 
 
 Evidence. 
 
 See Insurance, 5. Practice, 1. 
 
 1, Farol evidence of t.hc contents r/ n ietfcv of 
 attorney mr.y he adduced, if the person to 
 whom it was given prove it to have been 
 lost. Livingston v. Rogers. xxvii 
 
 Execution. 
 
 See Equity of Redemption. 
 
 Executor. 
 
 I. If an executor or trustee be robbed of mo- 
 ney, it is a good answer to a hill for an ac- 
 count. If the executor or trustee be dead, 
 Jiis personal representative may avail himself 
 f it, though it want the corroboration of the 
 Oath of him whmhe represents. Fnrman 
 v. Coe and others, 96 
 
 Fieri Facias. 
 
 See Equity of Redemption, I. 
 
 Foreclosure. 
 
 Sec Mortgage, 1. 
 
 Foreign Sentences. 
 
 See Insurance, 5". 
 
 Forfeiture. 
 See Turnpike Acts, I. 
 
 I 
 
 Illegal Voyage. 
 
 See Insurance, 2, 
 
 Illicit Trade. 
 
 See Insurance, 5. 
 
 Injunction. 
 
 See Practice, 2. 
 
 Insurance. 
 
 1. On a capture, restoration, and abandon- 
 ment, the fact of restoration, though un- 
 known at the time of abandonment, takes 
 away the right to abandon and claim for a 
 total loss. Under such circumstances, the 
 assured is entitled to recover only according 
 to the final event. Church v. liedie/it and 
 others, 21 
 
 2. A passport granted by any particular go- 
 vernment, to protect against its own_ crui- 
 sers, is not a sailing under the protection of 
 the flag of that government, so as to stamp 
 a national character, and be a violation ot 
 neutrality : nor is a voyage illegal, because 
 a vessel lias been driven by distress into a 
 French port, wlu-re a part, of her cargo was 
 taken by the officers of the government, 
 and she prevented from taking away her 
 original lading ; for she may, under such 
 circumstances, without incurring the penal- 
 ty of the Act forbidding all intercourse with 
 the dependencies of France, purchase and 
 load with the produce of the country. Hal- 
 lett ? Ko~Jine. v. Jenks and others, 43 
 
 3. A mere sailing to a port understood to be 
 blockaded, is not a breach of neutrality, RO 
 ar> to affect a policy of insurance. Vos & 
 Graves \. Unit. Jus. Company, vii 
 
 4. If a belligerent emigrate to n neutral loun 
 try, jiagrcmte hello, and be there naturali- 
 zed, a warranty of neutrality is supported 
 by such naturalization ; nor need the as-
 
 INDEX. 
 
 127 
 
 sured disclose to the underwriter the period 
 of his naturalization. Duguet v. Ithine- 
 laneier, xxv 
 
 5. The trade of a domiciled alien, carried on 
 from the United States with the enemies of 
 his mother country, is protected under the 
 warranty against illicit trade. To constitute 
 a breach of that warranty, the seizure must 
 be for actual, illicit, prohibited, or contra- 
 band trade. A seizure and condemnation, 
 under pretext of such a trade, is not suffi- 
 cient, if the trade be not in tact one or the 
 other. A sentence, in a foreign court of ad- 
 miralty, is not even prima Jade evidence of 
 any fact, if there appear in it enough to re- 
 but such a presumption. Jolmstin and Weir 
 v. Ludl<r.'.', xxix 
 
 Limitation. 
 
 See Mortgage, 1 
 
 curity, and at the time of giving the same, 
 the assignee have noiice of an assignment of 
 the bond and mortgage, made between the 
 first and second settlement. JLeake und 
 Sivarhvout v. JTovl^et/ and uthers, 73 
 
 3. No tacking between registered mortgages. 
 They must be paid off according to the dates 
 of their registry. Grant v. Bissett, 112 
 
 N 
 
 National Character of a Vessel. 
 
 See Insurance, 2. 
 
 Neutrality. 
 
 See Insurance, 2. 4. 
 
 New discovered Evidence. 
 See Practice, 1. 
 
 M 
 
 Mortgage, Mortgagor, and Mort- 
 gagee. 
 
 . A power of sale in default of payment, con- 
 tained in a mortgage deed, is a power cou- 
 pled with an interest, andtloes not die with 
 the mortgagor. If such power be recorded 
 in the hook for recording mortgages, it is a 
 compliance with the act. A sale under such 
 power is a species of foreclosure, and under 
 it a mortgagee himself may make a btna, 
 Jide purchase. After a lapse of sixteen years, 
 from the time of such sale, known to the 
 mortgagor or his heirs, who during that 
 time remain passive, a redemption will not 
 he allowed. Jiergen and another v. Hen- 
 iiett, 1 , 
 
 2. If one of many joint mortgagors assign his 
 interest to a third person, who is accepted 
 by the mortgagee in substitution of the as- 
 signor, and an endorsement be made on the 
 mortgage and bond, that such third person 
 is " accepted in lieu of the share which the 
 assignor holds in the bond, arid is looked to 
 for his proportion accordingly," the land 
 will be exonerated from the portion of the 
 assignor, on his assignee giving bonds for 
 the balance of an account between the mort- 
 gagee and the assignee, in which the assignee 
 Is debited for the proportion, provided it ap- 
 pear that those bonds have been satisfied, 
 notwithstanding such satisfaction be under a 
 settlement made after cancelling the original 
 bonds of the assignee, by giving other se- 
 
 Notice. 
 
 See Mortgage, 2. 
 
 Nudum Pactum. 
 
 See Turnpike Acts, 1. 
 P 
 
 Passport. 
 
 See Insurance, 2. 
 
 Payment. 
 
 See Mortgage, 2. 
 
 Power. 
 
 See Mortgage, I. 
 
 Practice. 
 
 l.On a discovery of new evidence, after a de- 
 cree in chancery, the application ought to 
 be for a bill of review, and not for a rehear- 
 ii.g When the competence of witnesses ex- 
 amined is the cause of application, it ought 
 to ! e by bill of review, when their credit, by 
 Brii>;l'-s. J'\i<-m:::'i v. f.'yc and others, V& 
 
 a
 
 128 
 
 INDEX. 
 
 2. Where there arc several complainants to a 
 bill praying an injunction, an affidavit by 
 one alone, showing probable cause for equit- 
 able interposition, is sufficient, and a de- 
 murrer that all have not joined is bad. A 
 demurrer to a bill, because seeking a disco- 
 very of that which would subject to the 
 penalties of the act, against buying pretend- 
 ed titles, is bad, unless it appear that the 
 answer would show a scienter of the seller's 
 being out of possession. If a plaintiff be 
 properly before the court of chancery for a 
 discover)', he may pray relief, and a de- 
 murrer to the whole bill on that account is 
 bad. Lie Roy and others \. Servis and 
 others. iii 
 
 Promissory Note. 
 
 If one of three joint makers of a promissory 
 note die solvent, and the two survivors be 
 insolvent, equity will order payment out of 
 the assets of the deceased. Jenkins v. De 
 Groot, 122 
 
 Public Acts. 
 
 See Turnpike Acts, 1. 
 
 Purchase. 
 
 See Mortgage, 1. 
 
 R 
 
 Redemption. 
 
 See Mortgage, I. 
 
 Registry and Registering. 
 
 See Mortgage, 3. 
 
 Rehearing. 
 See Practice, 1. 
 
 Relief. 
 
 See Practice, 2. 
 
 Review. 
 
 See Practice, 1. 
 
 Restoration. 
 See Insurance, 1 
 
 Robbery. 
 See Executor, 1. 
 
 Sale. 
 
 Satisfaction. 
 
 See Mortgage, 2. 
 
 Sheriff. 
 
 See Equity of Redemption, t. 
 
 Stock in Companies. 
 
 See Turnpike Acts, 1. 
 
 Substitution. 
 
 See Mortgage, 2. 
 
 Survivorship. 
 See Promissory Note, 1. 
 
 T 
 
 Tacking. 
 
 See Mortgage, 3. 
 
 Trade. 
 
 See Insurance, 5. 
 
 Trustee. 
 
 See Executor, I. 
 
 Turnpike Acts. 
 
 i. A Turnpike Act, incorporating a company 
 with a clause vesting the road on a certain- 
 event in the people, is a public act ut semb. 
 The mere subscribing to stock in a turnpike 
 company, where a part of the amount of 
 each share is ordered to be paid at that time, 
 gives no interest in the stock, if the money 
 be not paid, and the company cannot bring 
 an action for the amount, as it is nudum 
 pactum. A clause of forfeiture of shares 
 subscribed, takes away the right of suing for 
 them, or for money ordered to be paid on 
 them. Jenkins v. Union Turnjrike Com- 
 pany, 86 
 
 w 
 
 Warranty. 
 
 See Insurance, 4, 5. 
 Witness. 
 
 See Mortgage, 1. 
 
 2 
 
 Equity of Redemption, I 
 
 See Practice, 1.
 
 CASES 
 
 
 ARGUED AND DETERMINED 
 
 I? 
 
 THE COURT 
 
 FOR 
 
 THE TRIAL OF IMPEACHMENTS 
 
 AND 
 
 CORRECTION OF ERRORS 
 
 THE STATE OF NEW-YORK, 
 
 Jjy FEBRUARY, 1805. 
 
 TO WHICH ARE ADDED 
 
 SOME OLD DECISIONS BOTH IN THAT AND THE 
 SUPREME COURT. 
 
 VOL. II. 
 
 Pi iuted and Published by I. Rile f . 
 1810,
 
 DISTRICT OF NEW-YORK, s*. 
 
 BE IT REMEMBERED, That on the twelfth day of August in the 
 thirty-second year of the Independence of the United States of Ame- 
 rica, ISAAC RILEY, of the said district, hath deposited in this office the 
 title of a book, the right whereof he claims as proprietor, in the words 
 and figures following, to wit : 
 
 "Cases argued and determined in the Court for the Trial of Impeachments 
 and Correction of Errors in the State of New-York. In February, 1805. 
 To which are added, some old Decisions both in that and the Supreme Court. 
 Vol. 11." 
 
 IN CONFORMITY to the act of the Congress of the United States, en- 
 titled, " An act for the encouragement of learning, by securing the copies 
 of maps, charts and books, to the authors and proprietors of such copies, 
 during the times therein mentioned ;" and also to an act, entitled, " An 
 act, supplementary to an act, entitled, an act for the encouragement of 
 learning, by securing the copies of maps, charts and books, to the authors 
 and proprietors of such copies, during the times therein mentioned, and 
 extending the benefits thereof to the arts of designing, engraving and 
 etching historical and other prints." 
 
 EDWARD DUNSCOMB, 
 
 Clerk of the District of New-York. 

 
 TABLE OF CASES. 
 
 Page Page 
 
 B Le Roy and others v. Lewis 
 
 BETTS v. TURNER, 305 and others, 175 
 
 Blood good v. Zeily, 124 Lewis v. Burr, 195 
 
 Brown and others v. Robinson Lodge v. Phelps, 321 
 
 and Hartshorne, 341 Ludlow and Ludlovv v. Si- 
 Bush v. Livingston and Town- mond, 1 
 send, 66 Ludlow v. Dale, 348 
 
 C M 
 
 Cortelyou v. Lansing, 200 Munro and others v. Alaire, 183 
 
 Covenhoven i> Seaman and 
 
 others, 322 N 
 
 Cuyler and others v. Bradt Newkerk and wife v. Willett, 296 
 
 and others, 326 
 
 . P 
 
 F People v. Sessions of Chenango, 319 
 
 Frost v. Carter, 311 
 
 S 
 
 H Smith v. Williams, 11O 
 
 Hallett and Bowne v. Jenks, 86 Smith v. Bell and others, 153 
 
 Smith v. Steinbach, 158 
 
 J Smith v. Hammond, 337 
 
 Jackson, ex dem. Loan-officers 
 
 of Rensselaer, v. Bull, 301 T 
 
 Jackson, ex dem. Van Alen, t>. Taylor v. Delancey, 143 
 
 Rogers, 314 
 
 Johnson v. Blood good, 303 V 
 
 Judah v. Randall, 324 Vandenheuvel v. The United 
 
 Insurance Company, 217 
 
 L 
 Laight and others v. Morgan W 
 
 and others, 344 Wetmore v. White and White, 87
 
 ADVERTISEMENT. 
 
 MOST of the decisions which follow the adjudica- 
 tions of 1805, are cases often cited at the bar, and as 
 often denied or disputed. To make known ivhat they 
 are, they are now published.
 
 CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 COURT FOR THE TRIAL OF IMPEACHMENTS 
 
 AND 
 
 CORRECTION OF ERRORS 
 
 IN THE 
 
 STATE OF NEW-YORK: 
 
 FEBRUARY TERM, 1805. 
 
 Daniel and Gillian Ludlow, Appellants, ALBANY 
 
 against 
 Lewis Simond, Respondent. 
 
 ON appeal from a decision of the Chancellor, dismissing if a sur ety en- 
 the appellants' bill with costs. gg 
 
 The appellants, on the llth of March, 1799, entered into 
 
 an agreement with Angler Marie Lcremboure, and the re- S" * 13 at 
 
 place, and con- 
 
 spondent, by which Leremboure was to load on board one signed to the 
 
 correspondent of 
 
 or more vessels, such a quantity or tobacco and Havanna su- the person to 
 gars, the former at 1O and a half and 11 cents per Ib. the r ity is given, who 
 
 latter at 15 dollars 75 cents per cnvt. for the brown, and 19 
 
 dollars for the white, as would form a capital of about ntui-e >; sale by 
 
 the consignee at 
 
 4O,OOO dollars, after deducting the drawback. The goods another place re- 
 
 . leases the surety 
 
 thus shipped, to be consigned, under a bill of lading, by Though relief at 
 
 r- x-i i r J x-t ' aw ma y b e had, 
 
 Daniel Ludlow & Co. to Messrs. Buildemaker cr Co. mar yet if it be doubt- 
 correspondents at Hamburgh, to be sold for the ^account and .{ain lU'e^iii"' 
 risk of Leremboure. Ludlow &P Co. to furnish Leremboure 
 with their notes, to order, for the above amount of 40,000
 
 2 CASES IN ERROR IN THE 
 
 ALBANY, dollars, payable, one half at four, and the other half at six 
 ^^Feb.i8U5^ mont h s ; each half to be divided in several parts, to be de- 
 
 D. & G. Ludlow livered so as to complete each particular shipment, and the 
 Simond. amount to be fully insured by one of the insurance compa- 
 
 < nies, or other respectable underwriters, of the city of New- 
 
 York. For this, Ludlow & Co. to be allowed a commission 
 of 2 1-2 per cent, on the invoices of the goods put on 
 board. To secure to Ludlow & Co. the repayment of the 
 40,000 dollars, together with the above commission, Lerem- 
 boure to assign the policies covering the shipments, and in 
 case of the capture or loss of any, Ludlow & Co. to receive 
 from the underwriters the amount of their subscriptions. 
 Should this mode of reimbursement not take place, Ludlow 
 & Co. were authorized to draw at 60 days sight on London, 
 twenty days before their notes respectively became due, at 
 the then current exchange, and to order the necessary re- 
 mittances to be made by Buildemaker & Co. to their friends 
 in London, or to whom they may value on, to meet their 
 drafts ; the remittances to be made at the risk of Lerem- 
 boure, both as to the validity of the bills and solvability of 
 the house in London, to whom the same might be made. 
 Ludlow & Co. to be allowed a further commision of 1 1-4 
 per cent, on the amount of all bills they might draw. If 
 the proceeds of the sales at Hamburgh, so disposed of, should 
 not prove sufficient to reimburse Ludlow & Co. the amount 
 of their several notes, together with interest on their ad- 
 
 * 3 vances, commissions, and all other ^charges, Leremboure to 
 
 make good the deficiency, so soon as ascertained, by giving 
 his note to Ludlow & Co. payable at 60 days, the same to 
 be endorsed by Simond &f Co. who thereby agreed thereto, 
 Ludlow fc? Co. obligating themselves, if the proceeds of the 
 several shipments exceeded the amount due them, to pay 
 the difference when in cash ; the parties binding themselves 
 to each other in the sum of 100,000 dollars for the due 
 performance of the agreement, which was executed in the 
 names of DANIEL LUDLOW & Co. (L. s.) 
 
 A. M. LEHEMBOURE, (L. s.) 
 L. SIMOND & Co. (L. s.)
 
 STATE OF NEW-YORK. 
 
 In pursuance of the above contract, Ludlow &r Co. on the ALBANY, 
 clay of the agreement, furnished Lcremboure with three notes ' 
 
 for 3,OOO dollars, two for 2,50O dollars, three for 2,GOO dol- D. & G. 
 lars, payable in six months, and one for 2,697 dollars 99 
 cents, at four months ; Lercmbonre, at the same time, as- 
 signing to them policies of assurance to the amount of 
 4O,OOO dollars on the cargoes of two ships loaded by him 
 with sugar and tobacco, marked D. L. which were, by 
 Ludloiv ? Co. consigned and ordered to be sold according 
 to the terms of their engagement. On the 6th of April fol- 
 lowing, Ludloiv s? Co. gave Leremboure other notes, making 
 up the sum of 36,431 dollars 88 cents. 
 
 The cargoes thus shipped, and consigned to Buildemaker 
 &? Co. at Hamburgh, arrived safe, but previous to their 
 reaching that port, several great failures had taken place, 
 which induced a very considerable change in the market. 
 In consequence of this, *Buiidema&er & Co. without any di- 
 rection from the appellants, sent the tobacco to Rotterdam, 
 addressed to their own correspondent, Roquslte Buildemaker, 
 who, in July, 1800, sold it for about 14,126 dollars 85 
 cents net, which he paid over to Ludloiv & Co. In the Oc- 
 tober following, the appellants, having ascertained the ba- 
 lance due, presented the accounts of the sales of the tobacco 
 to Leremboure, who acknowledged they were right, but, as 
 he was then insolvent and confined for debt, declined giving 
 his note for the deficiency, though the appellants demanded 
 it. Sixty-three days after this refusal, Liidlow & Co. called 
 on the respondent, and requested him to pay the amount of 
 the loss, which he refusing to do, they filed their bill against 
 him and the respondent, setting forth the above facts, charg- 
 ing a combination to refuse giving the note, praying that the 
 accounts between them and Leremboure, arising under the 
 agreement, might be taken, that Lercmbonre and the respond- 
 ent might be decreed to make good the deficiency or ba- 
 lance, and that they themselves might be decreed such other 
 relief as their case might require. 
 
 B b
 
 4 CASES IN ERROR IN THE 
 
 ALBANY, Simond put in his answer, stating, that without having any 
 
 Feb. 1S05. . . , . c 
 
 i^ _^j interest in the contract, or expecting to receive any benefit 
 
 D. & G. Ludlow from it, he consented to become surety for Leremboure, and 
 Simond. did, with him, execute the agreement in the name of Lewis 
 - Simond & Co. though, not having any partner, he himself 
 was solely bound by the signature. The answer, also, ad- 
 mitted the facts as detailed, except as to the effect of the 
 failures at Hamburgh^ of which it stated his ignorance, but 
 averred, that the reshipment of the tobacco for Rotterdam, 
 & and sale of it there, was without the consent *of Leremboure 
 
 or himself; in consequence of which, Leremboure refused 
 to give the note mentioned in the agreement, and he to pay 
 or make good the deficiency, considering themselves re- 
 leased from all obligation to do the one or the other. 
 
 To establish the price of tobacco at Hamburgh, in the 
 summer of 1799, /. L. Steinbach and John H. Schmidt were 
 examined, but the first could prove nothing as to the point, 
 and the latter, only that Virginia tobacco^ at Hamburgh, 
 was, from the month of October, 1 799, to the end of the 
 year, at 35. 9d. to 4*. Hamburgh currency, per Ib. that 
 Maryland was higher, and that the price continued the 
 same in 180O, but what it was in the summer of 1799 he 
 could not tell. 
 
 To prove the execution of the agreement, William M. Sc- 
 ion and Martin Hoffman were examined, who deposed, 
 that they saw " Daniel Ludlow and Gulian Ludlow, the com- 
 plainants, and Anier Marie Leremboure and Lezvis Simond, 
 execute the contract." 
 
 The cause being heard, on the above admissions and tes- 
 timony, his honour the Chancellor pronounced the decree, 
 now appealed from, and thus assigned his reasons : 
 
 Mr. President On this case several questions have been 
 made, but a preliminary consideration is 
 
 Whether the bill can be sustained in this court ? 
 
 The informality in the execution of the contract, might, 
 of itself, be sufficient to repel ihe allegation, that the matter
 
 STATE OF NEW-YORK. 5 
 
 in the bill is not cognisable here, as it was determined ALBANY 
 
 while I was in the supreme court,f that an execution of a _**' s - 
 
 sealed instrument by one partner, *in the name of the firm, D. & G Ludlow 
 
 was invalid, and it was for that reason rejected as evidence. Simond. 
 But in this case it is not necessary, nor do I mean to 
 
 7 ' 
 
 r , ., 
 
 ground my opinion on that point, tor there is another head Jutyterm, 1791. 
 of equity which must sustain the bill. 
 
 The defendant, Leremboure, has refused to give his note, 
 and it does not appear to me that any form of pleading at 
 law, would enable the complainants to allege the not endors- 
 ing a note rvhich never was in existence, as a breach of con- 
 tract by the defendant Simond, or as cause of action in any 
 other shape ; the making of the note would there, as to the 
 defendant Simond, be considered in the nature of a con- 
 dition precedent ; and if it could be made out in proof, that 
 the not making it was the effect of fraud or collusion, it 
 would, perhaps, not better the condition of the complain- 
 ants, for it would then become one of the peculiar objects 
 of the jurisdiction of this court, but there certainly could 
 be no valid reason for coming here to account, as the 'ac- 
 counting in this case can only be required from the com 
 plainants. 
 
 I, therefore, proceed to consider the questions applying 
 to the merits ; these are 
 
 1 st. Whether the agreement was a valid one, as the com- 
 plainants are described as Daniel Ludlow &? Co. and have 
 executed it with one seal only ? 
 
 2d. Whether the house of Bnildcmaker & Co. were the 
 joint agents of both, or the agents of either exclusively? 
 
 3d. Whether the defendant Simond was an original par- 
 ty in interest in the contract, or only introduced as surety ? 
 and if as surety, 
 
 *4th. Whether the deviation from the terms of the con- * f 
 
 tract in its execution, has not discharged him ? and, 
 
 5th. It has been insisted, that as the defendant Simond 
 is not liable at law, this court will not carry his respon-. 
 sibility beyond it.
 
 CASES IN ERRO11 IN THE 
 
 ALBANY, As to the first question, if the contract was invalid, as to 
 
 the complainants, the consideration on the part of the de- 
 
 D. k G. Ludiow fendants must have failed also, and of consequence it was 
 Simond. insisted the whole transaction was nugatorv. 
 
 " " To the contract appears the signature of " Daniel Litd- 
 
 low tf Co" collectively, as one of the parties ; both the 
 complainants, however, were present, and the subscribing 
 witnesses depose, that both executed it. 
 
 Whether this inference was drawn from the erroneous 
 opinion, that the act of one copartner may bind the other 
 in all cases, respecting their common concerns, whether the 
 act is with or wit/tout seal, or whether they both actually 
 and formally sealed and acknowledged the instrument as 
 their act and deed, cannot be determined from the depo- 
 sitions : it is a fact proved that both executed it. 
 
 The signature of the contracting parties is in the ordi- 
 nary and regular form ; but it is not an essential part of the 
 execution: the sealing and delivery are of its essence, and 
 I kno'.v of no law which will prevent a plurality of parties 
 from acknowledging one seal affixed to an instrument, as 
 the seal of each party separately ; for the mere recognition 
 of a seal does not, in its modern use, amount to an exclu- 
 sive appropriation, so as to prevent the other parties to the 
 
 * 8 instrument, *from using it as their own, for all the pur- 
 
 poses of giving validity to the deed, to which it is affixed, 
 as their act; but in this instance, whether the paper in 
 question is considered as a deed, or depending upon the 
 principles regulating simple contracts, will not vary its 
 operation. Before it assumed die shape of a deed, and had 
 the formalities attending its being constituted such attach- 
 ed to it, tho contract had received a definite complexion. 
 The terms had been arranged and precisely ascertained by 
 the convention of the parties, and it would emphatically be 
 entangling justice in the net of form to sustain an objection 
 on that ground here, for the existence and terms of the 
 contract are the only objects, as far as respects this point 
 in contest between the parlies ; and that these were au-
 
 STATE OF NEW-YORK. 8 
 
 thenticated with a greater degree of formality than the ALBANY, 
 strict rules of law require, cannot certainly detract from the 
 
 evidence of its existence. D. & G. Ludlow 
 
 It will be perceived, that I do not rely on the acts of the jSmohd. 
 
 parties in its execution, which might, in all events, have a 
 
 determining effect in one point of view. That I do not now 
 mean to pursue. 
 
 As to the second question. 
 
 To determine this, it may be necessary to examine the 
 general scope and object of the contract, and to review its 
 different details. 
 
 The leading motives of the defendant Leremboure, seem 
 to have been, to avail himself of the agency of the com- 
 plainants, perhaps as a protection against the captures of 
 belligerents, and the reduction of the premium of insurance, 
 and certainly of their credit, to give him an earlier com- 
 mand of the funds, expected *to a rise from the consign- * 9 
 ments of his sugars and tobacco to Hamburgh, and on the 
 part of the complainants, the receipt of the commission 
 stipulated by the contract. 
 
 The contract was so arranged, as to afford the complainants 
 every reasonable security against ultimate loss, and much 
 more so than could apply to ordinary commercial specula- 
 tions, if the business was correctly managed, according to 
 the directions contained in the contract. 
 
 It multiplied the guards against loss by reposing, first, on 
 the responsibility of Leremboure ; secondly, and principal- 
 ly, on the subject consigned ; and thirdly, on the defendant 
 Simond, whose ability to respond does not appear to be 
 questioned. 
 
 The contract stipulates, that Leremboure shall put on 
 board one or more vessels, tobacco and sugars, at fixed 
 prices, to the amount of about 40,OOO dollars ; that those 
 goods shall be consigned under bills of lading of the com- 
 plainants, to Buildemaker & Co. their correspondents at 
 Hamburgh, to be sold for the account and risk of the de- 
 fendant Leremboure ; that he shall insure them, and assign
 
 i CASES IN ERROR IN THE 
 
 ALBANY, the policies of insurance to the complainants, who shall re- 
 ceive from the underwriters the amount of any losses 
 
 D. k G. Ludiow which shall be applied to the reimbursement of the com- 
 Sim V ond. plainants. 
 
 The complainants agree to furnish their notes to the de- 
 fendant Lt-remboure, to the amount of the several ship- 
 ments, fully insured, one half payable in four, the other 
 half in six months, and to pay any surplus which may re- 
 main, after they have been satisfied, to Leremboure. 
 
 * 10 #If the policies did not afford a means of reimbursement, 
 
 then the complainants were authorized to draw, twenty 
 days before their notes became due, at the then current ex- 
 change, at sixty days on London, and to order the necessary 
 remittances to be made by Buildemaker & Co. to their friends 
 iu London, on whom they might value, to meet their drafts, 
 for which the complainants were to receive an additional 
 commission of one and one quarter per cent, on the amount 
 of such drafts. 
 
 If the proceeds of the sales at Hamburgh should prove 
 inadequate to reimburse the complainants, the defendant 
 Leremboure agreed to make good the deficiency as soon as 
 ascertained, by giving his note to the complainants, payable 
 at sixty days, and then follows, " the same to be endorsed 
 by L. Slmond & Co. who hereby agree thereto." 
 
 The house of Buildemaker & Co. are described as the 
 \ 
 
 correspondents of the complainants at Hamburgh ; the com- 
 plainants are authorized to order the necessary remittances 
 to be made by that house, to London ; they were to consign 
 the tobacco and sugars, which were particularly valued, 
 under their (the complainants') names, to the same house ; 
 the policies were to be assigned to them ; Buildemaker &? 
 Co. were to make a selection of a house in London, to which 
 the remittance was to be made by them, from Hamburgh, 
 though that remittance was to be made, both as to the 
 validity of the bills and solvability of the house in London, 
 at the risk of the defendant Leremboure.
 
 STATE OF NEW- YORK. 10 
 
 All these are strong marks of a determination completely ALBANY, 
 to devolve the control of the subject upon #the complain- v^JL ^i^/ 
 ants, of a total abandonment of the right of interfering in D. & G. Ludlow 
 the management of the fund, destined to secure the com- Simond. 
 plainants against the responsibilities they might incur, until - 
 
 its disposition should have been effected ; and after this was 
 consummated, the defendant Leremboure was even to re- 
 ceive the surplus from the hands of the complainants, and 
 not from Buildemaker & Co, to whom a resort must of 
 coui'se have been had, if they were the joint agents of the 
 parties. 
 
 The description of Buildemaker 8? Co. as correspondents 
 of the complainants, in mercantile language, is somewhat 
 more forcible than in common parlance ; it indicates persons 
 with whom they were in the habit of doing business, ana 
 in this instance it can only have been introduced to show, 
 that in the capacity of the correspondents or agents of the 
 complainants, they were to be entrusted with the manage- 
 ment of the concern. 
 
 If that were not the case, one of the links in the chain of 
 security, which the complainants evidently intended to rely 
 on, would have been effectually broken. 
 
 The assignment of the policies of insurance was intended 
 to afford a fund for the complainants' indemnity, in case ot 
 loss in transitu. Upon the arrival of the subject at its des- 
 tined port, it was to be committed to the complainants' con- 
 signees, at the risk and for the ultimate account of the de- 
 fendant Leremboure, but exclusively subject to the disposi- 
 tion of the complainants ; for they were authorized to order 
 the proceeds to be remitted to London, and unless this could 
 be done without the interruption or control *uf the de- * 12 
 
 fendant Lertmbonre, the fund, on the credit of which the 
 complainants had given their notes, might have been with- 
 drawn, and none left to satisfy the bills which they were 
 authorized to draw on that place.
 
 12 CASES IN ERROR IN THE 
 
 ALBANY, As to the third point. 
 
 Feb. 1805. 
 
 * t -^_ 7 The introduction to the contract is, " that it is agreed 
 D. & G. Ludlow bctrveen the subscribers;" this comprised all the parties. 
 Simorui. Every subsequent article, the last excepted, on the part 
 
 "" of the defendant, is exclusively imposed on, or for the 
 benefit of the defendant Leremboure ; he is to ship the to- 
 bacco and sugars, which are to be sold for his account and 
 risk ; he is to assign the policies ; he is to be at the risk of 
 the remittances; he is to make good the deficiencies, and 
 he is to receive the surplus, if any. 
 
 It has, therefore, notwithstanding this general introduc- 
 tion, a partitive effect ; it contains a detail of the stipula- 
 tions between the complainants and the defendant Lerem- 
 boure, particularly prescribing the duties and obligations 
 intended to be thereby imposed on each, and then, as a 
 final clause, the defendant Leremboure^ " agrees to make 
 good the deficiency as soon as ascertained, by giving his 
 note to D. Ludlow & Co. payable at sixty days, the same to 
 be endorsed by L. Simond &? Co. -who hereby agree thereto" 
 which is an additional indicium of the intent that the de- 
 fendant Simond^ should only be held to pay, if the defend- 
 ant Leremboure did not. The relation of principal and sure- 
 ty is strongly inculcated from this circumstance, and the 
 whole tenor of the contract appears to me to support the 
 * is same ^construction. I am therefore of opinion, that the 
 
 defendant Simond is to be considered merely as a surety. 
 This brings me to the fourth question. 
 It may tend to elucidate this point, to ascertain the time 
 and place in which the acts, preparatory to the liability of 
 the defendant Simond, were to be performed. 
 1. As to the time. 
 
 The contract bears date the llth day of March, 1799; 
 it contains no particular limitation when the shipments were 
 to be made, but it seems, the tobacco and sugar were rea- 
 dy for exportation, as the notes were to be furnished when 
 each particular shipment should be completed, one haU
 
 STATE OF NEW-YORK. 13 
 
 payable in four, the other half in six months. It appears ALBANY, 
 that two different shipments were made on the llth of 
 
 ch) (the date of the contract,) and the 6th of April, D. & G. 
 1799, at which time the notes stipulated by the contract simond. 
 
 were given ; the complainants by its terms were authorized ' 
 
 to draw on London, at sixty days, twenty days before the 
 days rvhereon the notes were limited to be paid, and to di- 
 rect a remittance of the proceeds of the sales to be made 
 from Hamburgh to London, to satisfy the bills drawn on 
 the latter place ; these shipments, on the data furnished by 
 the contract, would authorize the complainants to draw, in 
 the months of June and August, for the first, and in July 
 and September, 1799, for the second, periods which, with 
 the necessary allowance for the transmission of the bills 
 and the sixty days at which they were to be drawn payable, 
 are the criteria from which the intent of the parties, as *to * 14 
 
 the consummation of the transaction, is to be collected. 
 
 As to the place* 
 
 The consignment was to be made to Buildcmaker &? Co. 
 at Hamburgh, the proceeds of the sales at Hamburgh, are 
 spoken of in another part of the contract ; the remittance 
 was to be made by Buildemaker & Co. to London; the 
 shipments were made to Hamburgh, and the insurance 
 limited to that place. All these circumstances pointed to 
 Hamburgh, in its locality, for the conversion of the articles 
 shipped, into money, and from which the remittance was 
 to be made. 
 
 The time might vary according to circumstances, but an 
 unwarrantable delay, though it might have promoted the 
 advantage of the defendant Leremboure, if he had remained 
 solvent, might be very prejudicial to the defendant Simond, 
 who would thus be prevented from taking measures for his 
 indemnity, which a sense of danger would have prompted, 
 and instead of depending upon an insolvent, he might have 
 been placed at least in a situation to struggle lor a plank in 
 the shipwreck. This he is now totally precluded from ; it 
 is therefore incumbent on the complainants to show that 
 
 cc
 
 14 CASES IN ERROR IN THE 
 
 ALBANY, they have been so vigilant as not to subject him to loss by 
 
 Feb. 1805. the non . exec ution, or delay in the execution of the powers 
 
 aT^'Oil which they had a right by the contract to exercise, and 
 
 ,. v which it is of no consequence to the defendant Simond, 
 
 Simond. 
 
 whether delayed by the act of die complainants solely, or 
 
 the joint act of the parties in interest, as the consent of one 
 
 # 15 or both could not vary his ^situation, or the precise mea- 
 
 sures of his responsibility. 
 
 The sale of the 169 hogsheads of tobacco took place on 
 the 3d of July, 1800, probably more than a year after its 
 arrival at Hamburgh, for no part of the evidence ascertains 
 the time of its arrival. Daring all this time the defendant 
 Simond, was unapprized of the result of the speculation, 
 and precluded from taking the necessary steps to protect 
 himself from loss. So far as respects the place, there is a 
 palpable departure from the terms of the contract, not even 
 satisfactorily explained on the ground of its being advan- 
 tageous, for the depositions to this point leave the subject 
 where they found it ; that of Joachim Ludwig Steinbach, 
 does not touch the period during which the tobacco was at 
 Hamburgh or Rotterdam, and that of John H. Schmidt^ 
 states the price of Virginia tobacco from the month of Octo- 
 ber, eight months after it was embarked for Hamburgh, 
 from 3s. &/. to 4-s. Hamburgh currency, per Ib. and though 
 it has been admitted, that failures of great extent took place 
 at Hamburgh about the time the tobacco in question ar- 
 rived at that place, there is no proof of the influence of that 
 circumstance, on the state of the market, nor any reason 
 given why it should affect the tobacco and not the sugars. 
 
 Indeed, if the evidence given in this cause was apposite, 
 it would show there was a market for tobacco in Ham- 
 burgh, and that the prevailing price at that place might or 
 might not, according to the different constructions of which 
 this indistinct evidence is susceptible, have been more than 
 the sales ultimately made at Rotterdam. 
 
 # 16 *The consideration of loss occasioned by parting with 
 
 money to the principal, in consequence of a reliance on a
 
 STATE OF NEW-YORK. 16 
 
 surety, is as valid and meritorious in all legal and equitable ALBANY, 
 views, as a benefit or profit acquired by the surety person- .* y 
 
 ally, and as on the one hand the surety ought to be held, D. & G Ludlow 
 perhaps, with more of less strictness, according to circum- simowl 
 
 stances, to his engagements ; so, on the other, the surety's 
 
 risk ought not to be increased, or his contract varied to his 
 prejudice. 
 
 The latter of these positions has been repeatedly recog- 
 nised in the British courts, and though most of the cases 
 bearing on this point, were adjudged since the revolution, 
 and so no authority here, the principles laid down in them 
 as far as they are necessary to be applied to the present 
 point ; that a surety cannot be carried beyond his contract ; 
 that the contract made by the parties must be judged of, 
 and not another substituted in its stead ; that it cannot be 
 varied without his consent, and that a surety for definite 
 engagements shall not be extended to an indefinite one, ap- 
 pear to me correct, f f2 Term Jiep. 
 
 r ,., ir i 1'i-r 3T2. 7 TermKep. 
 
 These must iorm solid grounds ot equity, by which, it 256. 2 .Brown'* 
 this cause is tested, there is no pretence for charging the y l e , ^ n 5 ^^ * 
 defendant Simond. 
 
 Here the defendant Simond became bound for a definite 
 object to respond for deficiencies in sales made at Ham- 
 burgh in a reasonable time. The complainants seek to 
 charge him for deficiencies arising on sales made at Rotter- 
 dam at a later period than the contract contemplated, a to- 
 tally different mart, subject to a different government and 
 laws, exposed to some additional risk, and certainly to ad- 
 ditional expense, *from the change of place, and the in- * 17 
 convenience of a change of agents, not entrusted by the 
 parties ; for the accounts of sales are subscribed Roquette 
 Buildemaker, and not by the firm of Bnildemakcr & Co. 
 
 If it was proper to send the subject to Rotterdam, I know 
 of no principle that could have restrained it from being 
 sent to London., or even to Canton, in quest of a better 
 market.
 
 ? CASES IN ERROR IN THE 
 
 ALBANY, Upon mature reflection, and a deliberate review of all 
 
 Feb. 1805. .. , . T , 
 
 the circumstances attending this case, I am strongly im- 
 pressed with the opinion, that the defendant Simond is not 
 chargeable, and that as to him, the complainants have not 
 sustained their bill, and it must, therefore, be dismissed 
 with costs. 
 
 Woodworth, Attorney-General, for the appellants. Be- 
 fore the merits of this case are approached, it may be ne- 
 cessary to establish that the suit was rightly commenced in 
 the court of chancery, as the fit and proper tribunal. Equi- 
 ty has, in many instances, a concurrent jurisdiction with 
 the common law, but it is invariably the forum to which re- 
 course is to be had, wherever, upon the principles of univer- 
 sal justice, the interference of a court of judicature is " ne- 
 cessary to prevent a wrong, and the positive law is silent." 
 1 Fonb. 10. n. (/") In matters of account it has almost 
 exclusive jurisdiction, and the mere circumstance of its be- 
 ing requisite to state one, has been held sufficient to warrant 
 a bill. 2 Eq. Cas. Abr. 4. Here the basis of the notes to 
 be given, was a balance that could be ascertained only by 
 an account. Besides, the refusal of Leremboure to give 
 
 * 18 *the note Simond was to endorse, might be the result of 
 
 combination and fraud, which chancery alone could discover, 
 and relieve. Any suspicion of trick, deceit, and contri- 
 vance, is sufficient to give to chancery cognisance of the 
 | Le JVerev. Le suit. 3 Atk. 654. f If there was any doubt hanging over 
 the case, whether a court of law was adequate to all its 
 emergencies, it would afford acknowledged reason for equi- 
 
 * ll'eymouth v. table interposition. 1 Vcs. jun. 424.J It might ha^e been 
 
 made a question, how far the -contract, being signed only by 
 one of the appellants, and having but one seal affixed, could 
 be enforced at law. But as it is proved to have been exe- 
 cuted by both Daniel and Gillian Lndlnv, this point cannot 
 now be insisted on, as it is to be inferred they severally ap- 
 propriated the same seal to themselves. This would be a 
 valid execution by both. In Ball v. Dimstei-v'ille, 4 D. &f
 
 STATE OF NEW- YORK. 18 
 
 . 313. a single seal used by one partner, with the assent ALBANY, 
 of the other, in the name of both, was held obligatory on 
 
 each. Allowing, however, that there was a remedy at law, D - 
 
 that does not of itself oust chancery of jurisdiction. In 
 
 Billon v. Hyde, 1 Atk. 128. a verdict, in an action for mo- 
 
 ney had and received, was not deemed to preclude from -a 
 
 recurrence to equity ; because the subject of discussion in- 
 
 volved matters of contract and account. Nay, though the 
 
 very reason assigned for going into chancery, be such as the 
 
 chancellor himself would have allowed the benefit of at law, 
 
 it does not prevent an application to equity ; because it is 
 
 possible the judge before whom offered, might be of a dif- 
 
 ferent opinion. Burrows v. Jemima, 2 Str. 733. In mer- 
 
 cantile transactions relating to agents and ^factors, a con- * 19 
 
 current jurisdiction has always been exercised. 3 Black. 
 
 Comm. 437. So where a bond was lost, there was form- 
 
 erly no remedy but in chancery. 1 Ch. Cos. 77.f The t Underwood v. 
 
 law is otherwise now, but still relief may be sought as be- 
 
 fore ; and as the present is, perhaps, a case of suretyship, 
 
 equity is the most appropriate tribunal ; for a surety, no 
 
 liable at law, may be so there ; as if his name be not men- 
 
 tioned in the body of an obligation which he has signed. 
 
 Crosby v. Middleton and others, Free, in Chancery, 309. 
 
 So equity will in many cases set up against a surety, debts 
 
 extinguished at law. Skip \. Huey, 3 Atk. 93. But how- 
 
 ever forcible the argument against the jurisdiction might 
 
 have been, it is too late to urge it now. The respondent 
 
 should have taken advantage of it prlmo die, by plea in abate- 
 
 ment. He cannot avail himself of it, after answering and 
 
 proceeding to a hearing ; for by so doing, he has submitted 
 
 to the jurisdiction. Penn v. Lord Baltimore, 1 Vez. 447. 
 
 The merits are grounded chiefly on Simond's being but a 
 
 surety. This, it may be observed, does not expressly ap- 
 
 pear, and as it is enforcing very strict rules to do away the 
 
 effect of a contract, the onus probandi lay on the respondent. 
 
 He should have substantiated this by witnesses ; for by the 
 
 instrument it is left in doubt, though it may be inferred. In-
 
 19 CASES IN ERROR IN THE 
 
 ALBANY, ferencc, however, ought not to decide this question ; it must 
 
 ,. _JL' '-^1 ' turn on lnc construction of the agreement. The rule on this 
 
 D. & G. Ludlow subject is, that the intent ought to govern. 1 Fonb. 427. 3 
 
 Simond. Atk. 136.f Kaimes's Prin. of Eq. 204. 239. To effectu- 
 
 - a te this, equity is more liberal than a court of law. 2 Atk. 
 
 t Smith v. Park- J 
 
 fmrst. 581. The security of the appellants, was the object of 
 
 * Bagsha-w v. 
 
 Spencer. every part of the ^'contract. The moderate compensation 
 
 they were to receive, is a proof of this. A commission of 
 2 1-2 per cent, could never be meant as an indemnity for 
 any hazard whatsoever. The goods are to be sold at the 
 risk of Leremboure. It was intended therefore, that no loss, 
 resulting from the sale, should be thrown on the appellants. 
 Simond assents to this, and guaranties against it. That the 
 property should be sold at Hamburgh, was not of the es- 
 sence of the contract. The goods were to be sent to Ham- 
 burgh, to be sold, and not to be sold at Hamburgh. It was 
 too'rigorous to say, that the agents there had not a discre- 
 tionary power to send the consignment to a better market. 
 Whatever was bondjlde done, for the advantage of the prin- 
 cipals, is to be protected. It is a mistake to imagine that 
 Buildemaker & Co. were the exclusive agents of the appel- 
 lants. The contract speaks the language of all the parties to 
 it, and that says, the goods shall be sent to Buildemaker & Co. 
 They were, therefore, as much the agents of the respondent, 
 as of the appellants. Leremboure consents 'that they shall 
 sell for him, and at his risk. What is this but constituting 
 that house his agent, and with the approbation of Simond? 
 If this fact be admitted, it is immaterial whether the agents 
 were authorized to send the goods to Rotterdam or not, be- 
 cause it was then the act of the respondent. Allowing, how- 
 ever, that Buildemaker s? Co. were the agents of the appel- 
 lants only, and that they had no right to sell at any other 
 place than Hamburgh, still the consequences insisted on 
 would not follow. The utmost that could be claimed, 
 
 # 21 would be a deduction adequate to the actual *Ioss sustained 
 
 by the breach of duty. Here it is manifest from the ac- 
 count of sales, that there has been a gain by changing the 
 2
 
 STATE OF NEW-YORK. 31 
 
 place of sale. Notwithstanding this, the respondent loudly ALBANY, 
 
 i- II Feb. 1805. 
 
 insists, that because he is, from our management, liable t > ^r^^j 
 
 less than he would otherwise have had to pay, he is there- D. & G. Ludlov 
 
 fore responsible for nothing. Is this a defence to be en- Simond. 
 
 dured in equity ? It will never surely be urged, that from ~ 
 
 the period at which the sales took place, Simond is released. 
 
 The contract limits no time, within which they were to be 
 
 made. Where then is the authority for making it criminal 
 
 to sell in one month more than in another ? A suretyship 
 
 not restrained within given periods, is not discharged by 
 
 lapse of time. \ Boa. tf Pull. 419.f Should the court be t **l v. Tat- 
 
 of opinion, that the cause rests on the fact of the property 
 
 not having sold for more at Rotterdam than it would have 
 
 produced at Hamburgh, an inquiry may be directed on that 
 
 point, in the same manner as in cases of accounts ; it is not 
 
 unusual to refer them to two merchants. Gyles v. Wtlcox, 2 
 
 Atk. 144. 
 
 Hoffman, Henry, Van Vtchten, and Edwards, contra. 
 The questions in this case ought to be considered without 
 reference to Leremboure, whose acts are not to affect Simond, 
 the only real respondent. He, it is evident, on viewing the 
 contract, which is consistent throughout, could be no more 
 than a surety. He has no kind of beneficial interest. Nei- 
 ther in profits nor in commissions does he participate. The 
 only character in which he appears, is that of a guarantee 
 against loss. He has only one solitary act to perform, that 
 of making good any deficiency duly incurred, and legally 
 ascertained. To constitute a man a surety, it is not neces- 
 sary that in the instrument he sh<3uld be *named as such. 
 If, from its nature or condition, it can be collected, it is 
 sufficient. Lord Arlington v. Merrkke, 2 Sauntl. 411. and 
 the authorities in notis. If, then, the respondent be a 
 surety, of whirh there seems to be no -doubt, he cannot, as 
 all the court held in Wils. 539.J be bound beyond the strict Wri S htv.Rw- 
 letter of his contract. The same principle is acknowledged * 
 in 1 D. &? E. 291. n. (<*). Nor is it extended h: equity ; Barclay T. Lu.
 
 22 CASES IN ERROR IN THE 
 
 ALBANY, for it is there settled, that if not bound at law, a surety shall 
 
 ^J^ 5 ' not be liable there. 1 Fern. 196.f 2 Fern. 393.$ 2 Cfc. 
 
 D. & G. Ludlow Cas. 22.$ .The reason of these cases is, that sureties have 
 
 Simond no beneficial interest. They merely exercise their bounty 
 
 and good will, without consideration. The securities, 
 
 Grove*. therefore, into which they enter, stand on the same footing 
 
 c^on? V Ld as voluntary conveyances, which are never helped in equity. 
 
 *Field PS n V ' 2 Vent ' 365> ^ For before tnat tribunal, the very motives 
 
 % Bonham v. on which they engage, render them, in all cases, favourites 
 Newcomb. " 
 
 of the court. On this point, every authority cited is a 
 
 * s.ltk. 93. proof. As to the case of Skip v. Huey** that relates only 
 to securities destroyed or lost, by fraud or accident. It does 
 not warrant the extension of a security. And though Cros- 
 
 ft3Ch.Rep.55. by v. Middleton\\ seems to be against our positions, that 
 case may well be doubted, for in 1 Fonb. 38. n. (tt>) it is 
 queried, and Sheffield v. Lord Castleton is almost directly in 
 opposition. As, then, Simond is only a surety, and sureties 
 are never, even in equity, liable beyond the letter of their 
 engagements, it will be now incumbent to show, what, by 
 the letter of the present engagement, Simond contracted to 
 perform, to make good such deficiency as should arise on 
 
 * 23 the sales of the cargo *at Hamburgh. That was the spot at 
 
 which they were to be made. It is reasonable that a mer- 
 cantile man, should guaranty the proceeds of a sale at one 
 market, who would, by no means, be responsible for the re- 
 sult at another. The insurances were made no further 
 than to Hamburgh^ and this alone evinces that the adven- 
 ture was to be terminated there. The contract, therefore, 
 was varied by sending the goods to Rotterdam. It trans- 
 ferred the property from a neutral port to that of a bellige- 
 rent, and took it out of the security of one, to expose it to 
 the various dangers of the other. This procedure extend- 
 ed, also, the period for which Simond was bound. It pro- 
 tracted to more than a year the concluding a speculation, 
 the termination of which, by the words of the contract, was 
 never contemplated to exceed six months. The respondent 
 was, therefore, released. Nisbet v. Smith^ 2 Bro. Ch. Rep.
 
 STATE OF NEW-YORK. 23 
 
 584. Rees v. Berrington, 2 Ves. jun. 542. Against this ALBANY, 
 conclusion it is urged, that Buildemaker &? Co. were the ^ _^ 
 agents of Simond, at least of him and Leremboure, or, if not D. fc G. Ludlow 
 so, then of all parties ; but, that they could not be consi- simXi. 
 dered as the exclusive representatives of the appellants. 
 The object of the contract, and its various parts, show 
 that Buildemaker & Co. were the agents of Ludlow &? Co. 
 alone ; they were the correspondents of the appellants ; 
 the shipments were under their mark ; they were consigned 
 by them ; the remittances to be according to their order ; 
 the accounts to be rendered to them. In short, they were 
 to have the whole control of the adventure, and under them 
 Buildemaker &? Co. to act, unamenable to, and without any 
 interference of, Leremboure or Simond. How then could 
 Buildemaker ? Co. be the agents of persons they never knew, 
 *of principals by whom they were not to be directed, and * 24 
 
 to whom they were never to account ? It follows, therefore, 
 that they were exclusively the agents of the appellants, who, 
 and not Simond, must bear the loss arising from sales made in 
 violation of the contract. For, it was by the Ludloius that 
 confidence was placed in Buildemaker cs? Co. and the rule in 
 equity is, that u he who trusts most shall lose most." 3 Atk. 
 93. j- Another reason, against the claim of the appellants, \ Skip r. Huey. 
 arises from the very manner in which Simond consented to 
 be liable. He engaged to endorse such note as Leremboure 
 should give for such deficiency as should be ascertained on 
 sales at Hamburgh. Suppose a note had been given by 
 Leremboure, and en the respondent's refusal to endorse, an 
 action of covenant, which, indeed, is the true and only reme- 
 dv.had been brought for the breach of contract, would not 
 the plaintiff have been obliged to aver, that the sales were 
 made at Hamburgh, the deficiency on such sales ascertained, 
 and the making of the note ? These various circumstur.rrs 
 must, therefore, be deemed conditions precedent to the lia- 
 bility of Simwd; and if so, he cannot be responsible till 
 they are performed. For, where a condition is precedent, 
 it must be shown to have been literally fulfilled. 7 Rep. 9 
 
 od
 
 24 CASES IN ERROR IN THE 
 
 ALBANY, to ll.f It admits of no equivalent, because it is stricti 
 
 v!^ 18 L/ J urls ' s v ' m ' Abr - tiu Cond ' ition - 145 - P L 27< c - Litt - 
 
 D. &OLudk)w 218. (tf). Nothing can be argued from the acknowledg- 
 
 Sinujnd ments of Lerembourc') stated in the case. The contract of 
 
 one man cannot be varied by the act of another. If 1 enter 
 
 t Ut?htre(Fs case. . jinrii 
 
 into a bond to pay such sum as A. shall, alter 8 days warn- 
 ing to appear, be condemned in, if A. appear without no- 
 tice and be cast, my bond will not be forfeited. 7 Mod, 
 $ Hargrcnxi v. 144.J On every point, therefore, supposing *the court be- 
 
 Jt overs, cited by r . .... 
 
 JMt, Ch. 3. in low had cognisance of the matter, the decision was correct. 
 But we contend, the appellants had no right to ask the in- 
 
 son. 
 
 * 25 terference of that tribunal, and that the dismissal of the bill, 
 
 if improperly ordered on the grounds taken by the Chan- 
 cellor, must now be directed, for want of jurisdiction. Re- 
 dress was open at law, in an action for damages. There 
 alone it ought to have been sought, and there every satisfac- 
 tion might have been obtained. On the principle of ac- 
 count, the bill could never have been sustained ; because of 
 no privity in Shnond with respect to any of the transactions. 
 Nothing rested in his knowledge which he could disclose, 
 and he, consequently, was not liable to be called to an ac- 
 count in chancery. Com. Dig. tit. Chancery, (2 A.) through- 
 out. 2 Fonb. 182, 183. n. (11). 1 Eq. Cos. Abr. 5. n. (n) 
 also. The concurrent jurisdiction of equity, in matters of 
 account, arises only from the right to obtain a discovery, in 
 which case, the bill is retained for the purpose of relief. 1 
 Fonb. 10. n. (f). But what discovery can be obtained from 
 Simond? the prayer of the bill is, in fact, for damages ; 
 not for a specific execution, and carries, therefore, in itself, 
 a convincing proof that the application ought to have been 
 to another forum. The authorities cited to establish that it is 
 now too late to urge any thing against the jurisdiction, only 
 prove that when a defendant does not, in his answer, make 
 the cognisance of the court a point, he waives it ; not that 
 be cannot urge it in his answer. A defendant may, in his 
 
 Harris v. In- answer, insist upon his law. 3 P. Wms. 95. f Hinde, 200. 
 gledevi.
 
 STATE OF NEW-YORK. 25 
 
 P. Wms. 238.f The omission of a defendant, will not ALBANY, 
 
 c . .. Feb. 1805. 
 
 center jurisdiction. 
 
 D. & G. Ludlow 
 
 *Pendleton and Harison, in reply. It is a principle of simond. - 
 chancery, that, on a bill to account, both parties are actors, " 
 
 f H'rotsley v. 
 
 and, therefore, if Ludlow & Co. were alone to render one, Rmdiati. 
 still it would be a proper mode ; for, it often happens that, 
 from motives of prudence, a trustee has recourse to a set- 
 tlement in equity. To form an adequate judgment on the 
 present occasion, the situation in which the appellants stood 
 must be considered. They, in truth, were only trustees 
 for Lertmboure, to be, at all events, guarantied against any 
 loss from undertaking the office, and, with that view, Si- 
 mond entered into the contract. Adopting, then, these 
 ideas, we admit that the intent ought to govern in the ex- 
 position. But in making this exposition, it ought to be re- 
 collected that the contract, now before the court, and on 
 which the liability of the respondent arises, was of a mer- 
 cantile nature. A liberal construction, such as would be 
 given to a will, is that which, it is presumed, it would be 
 proper to adopt. The doctrine, then, of conditions prece- 
 dent, must necessarily be exploded ; nor, indeed, could it 
 ever apply, except by overlooking the distinction between 
 those conditions which lie in compensation, and those which 
 do not. Viewing, then, this as a commercial transaction, 
 in which the appellants became trustees, on consideration 
 of being kept harmless, it follows tluit, if their conduct has 
 been bona ftde, they are entitled to the indemnity, on the 
 faith of which they undertook the trust. The very essence 
 of it wa r ; reimbursement for the notes they gave, or the bills 
 they might draw. Any deficiency, however arising, was, 
 if they were not in fault, to be made good. Suppose the 
 property had been consumed by fire, in ware-houses, at 
 Hamburgh, must the appellants have borne the loss ? Yet, 
 -*to this, and a hundred other equally gross results, would % g* 
 
 the reasoning on conditions precedent necessarily lead. It 
 is a mistake to say, that Binldcmaker &? Ci. were the exclu-
 
 r CASES IN ERROR IN THE 
 
 ALBANY, sive agents of the Ludhws. They were equally agents of 
 iu5 ' the cestui que trust, being nominated, or assented to by all 
 
 D. & (.. Ludiow parties, for the purpose of carrying the contract into effect. 
 Simond ^ ut a 'l ow i n g tne 'arguments against us, on this point, to be 
 
 correct, who ever heard that a trustee was liable for the 
 
 conduct of an agent, appointed bona fide, and within the 
 limits of his authority ? We deny, however, that these 
 agents have been guilty of any misbehaviour. It is within 
 the scope of an agent's power to change the place of sale. 
 He is not bound to sell on the spot where the goods are con- 
 signed to him. He may transmit them to another market, 
 and all that is required, in the exercise of this discretion, 
 is, that it should not be at an unreasonable distance. In the 
 present instance it was rightly done. There was no price 
 to be obtained at Hamburgh. The recent failures, though 
 they left a market, gave no price ; for, between a market 
 and a price, there is a wide difference. The former signi- 
 fies a possibility of sale. The latter such a one as is ade- 
 quate and beneficial. Sending to Rotterdam obtained a 
 price, and that was a sufficient reason for the measure. No 
 mala Jides can be imputed. The contrary appears. Had 
 any existed, a sale at Hamburgh to themselves, or friendly 
 purchasers, would have enabled Buildemaker & Co. to avail 
 themselves of the Rotterdam price for their own benefit. 
 The counsel opposed to us, are not aware of the conse- 
 quences which a denial of this discretion might induce. 
 Suppose at Rotterdam a profit of 50,OOO dollars ; would 
 
 * 28 Biuldemqker & Co. have been ^entitled to retain it ? Yet, 
 
 on the argument of an indispensable obligation to sell at 
 Hamburgh, the proceeds at Rotterdam ought to be theirs. 
 For, if liable to make good a loss resulting from such sale, 
 the profit must belong to them. The fact is, that Ham- 
 burgh was the contemplated, but not the stipulated, port. 
 If, then, the place of sale was not restricted, still less so 
 was the time. Nothing but inference can be used to esta- 
 blish such a position, and a surety is not, with all the lean- 
 ing of courts in his favour, to be discharged from the letter
 
 STATE OF NEW- YORK. 28 
 
 of his contract by mere implication. If his responsibilities ALBANY 
 are not to be increased, his exemptions are not to be multi- * 
 plied. But the words of the instrument, and its positive 
 provisions, show an expectation of a possible lapse of time 
 
 in winding up the adventure, far beyond that allowed by 
 
 the opposite side. It is expressly agreed, that the appel- 
 lants shall have interest on their advances. Now interest 
 never runs till after the day of payment. On the other 
 points we think enough has been shown in the opening, to 
 warrant the reversal of the decree appealed from. 
 
 SPENCER, ]. In the discussion of this cause, the coun- 
 sel have rested their arguments on two principal points. 
 
 1st. Whether the court of chancery had jurisdiction of 
 this cause ? 
 
 2d. Whether the respondent Simond has, from the facts 
 proved, been discharged from his responsibility on the 
 contract entered into between the appellants, Leremboure^ 
 and himself? 
 
 I shall not enter into a particular consideration of the 
 first question, because, it is immaterial, in the view I have 
 taken of the subject, whether the court *of chancery had, * 09 
 
 or had not jurisdiction. I wish, however, to be explicitly 
 understood as not subscribing to the proposition, that that 
 court had cognizance of the cause on any of the grounds 
 urged by the appellants' counsel; and did it rest solely on 
 that point, the strong inclination of my opinion is, that the 
 appellants' relief, if any they are entitled to, is at law. 
 
 It cannot be controverted, but that Simond is a surety, 
 or guaranty for the performance of Leremboure's contract, 
 so far forth as respects the endorsement of a note which 
 the latter stipulated to give Daniel Ludhiv & Co. for the 
 deficiency of the proceeds of the sales of the goods men- 
 tioned in the contract. He is a surety merely, without the 
 chance of reaping any benefit from the enterprise ; he has 
 no interest in the adventure, and does not appear to have 
 been indemnified by any security for this gratuitous under-
 
 29 CASES IN ERROR IN THE 
 
 ALBANY, taking, and although it was suggested, that he might have 
 
 Feb. 1805. , f 
 
 been interested or secured, yet no facts appear in the case 
 
 D. fc G. Ludlow to warrant those suggestions, and the court are to judge 
 Simond. secundum allegata et probata. I proceed, therefore, on the 
 
 ' fact, that Simond was a surety, without any interest in the 
 
 subject matter of the contract, and without any counter- 
 security. 
 
 It has been correctly urged, that sureties are favourites 
 of courts of equity, and that those courts will not bind 
 them, where they are not strictly bound at law. It may, 
 in the same sense, be said, that they are favourites of 
 courts of law j and that there they will not be bound be- 
 yond the scope of their engagements. These maxims, if I 
 may so call them, grow out of the consideration, that in 
 the various transactions of life, men are liable to be called 
 
 * 30 on to render *acts of neighbourly kindness, without any 
 
 interest or expectation of reward ; that they are frequently 
 called on to become bail, endorsers of notes, guarantees ia 
 various modes, and when, in such cases, the principal 
 turns out to be insolvent, it becomes a question which of 
 two innocent parties shall sustain a loss. Both courts of 
 equity and law will cast the responsibility on the surety, 
 if, by the terms of his engagement, he has assumed it ; 
 but neither of them will do this where he is not brought 
 within the precise scope of his undertaking. 
 
 The authorities on this subject are very uniform ; they 
 speak a language not to be misunderstood, and, without 
 detaining the court by an enumeration of them, I am fully 
 justified, by those cited, in saying that, both in law and 
 equity, contracts, involving the rights of sureties, will, so 
 far as respects them, receive a more rigid and less liberal 
 construction, than between the original contracting par- 
 ties. 
 
 I shall not unnecessarily repeat the facts in this cause. 
 The material ones are, that by the contract, subscribed by 
 the respondent, it was stipulated, that Leremboure should 
 put on board one or more vessels, tobacco and sugars at 
 
 2
 
 STATE OF NEW-YORK. 30 
 
 certain fixed prices, of the value of 40,OOO dollars. That ALBANY, 
 these goods should be consigned, under bills of lading, to ^ *' 
 Buildemaker & Co. the appellants' correspondents at Ham- D. & G. Ludlow 
 
 y^ 
 
 burgh, to be sold for the account and risk of Leremboure ; Simond. 
 that he should insure them, and assign the policies to the 
 appellants, who should receive from the underwriters the 
 amount of the losses to reimburse themselves, the appel- 
 lants stipulating to furnish their notes to Leremboure for the 
 40,000 dollars, payable, the one half *at four months, the * 31 
 
 other half at six months, and if the proceeds of the ship- 
 ments should exceed the amount due the appellants, they 
 were to be answerable to Leremboure for the difference when 
 in cash. 
 
 If the policies did not furnish a mode of reimbursement, 
 then the appellants were authorized to draw at sixty days 
 sight on London^ twenty days before their notes respect- 
 ively became due, at the then current exchange, and to or- 
 der the necessary remittances to be made by Buildemaker 
 &? Co<. at the risk of Leremboure, both as to the validity of 
 the bills, and the solvency of the house in London, to whom 
 the same should be made, and should the proceeds of the 
 sales at Hamburgh, so disposed of, not prove sufficient to 
 reimburse the appellants the amount of their several notes, 
 together with what interest might be due them on their 
 advances, their commissions, and all other charges attend- 
 ing the negotiation, Leremboure agreed to make good the 
 deficiency, as soon as ascertained, by giving his note to the 
 appellants payable at 60 days, to be endorsed by the respond- 
 ent, who agreed thereto. 
 
 The shipments were made on the llth of March, and the 
 6th of April, 1799, at which time the appellants gave their 
 notes stipulated to be given by the contract. The cargoes 
 shipped and consigned to Buildemaker & Co. arrived safe 
 in the summer of that year. Previous to the arrival of the 
 cargoes, a great change had taken place in the market at 
 Hamburgh, and many failures had happened among the 
 principal traders there. Buildemaker &? Co. without any di-
 
 31 CASES IN ERROR IN THE 
 
 ALBANY, rcctions from the appellants, sent 219 hogsheads of tobacco 
 ^ Feb. isi s. ^ to Rotterdam, where they were sold *in December, 1799, 
 
 ft. & G. Ludlow and the summer of 1800, in the name of the appellants. 
 Siinomi The proceeds of the sales were insufficient to reimburse the 
 
 appellants the amount of their notes, with interest, com- 
 missions and charges, and for that deficiency the suit below 
 was instituted against Leremboure and the respondent. It 
 appears that, after the accounts had been received from 
 Buildemakcr & Co. the appellants presented them to Lerem- 
 boure, who overlooked them, and said they were right, but 
 that, having become insolvent, and being then confined for 
 debt, he refused to give his note for the deficiency, and both 
 he and the respondent refused, after the time had elapsed 
 when such note, if given, would have become payable, to 
 pay the appellants the balance, which the appellants claim to 
 be 24,O44 dollars 82 cents. 
 
 The only proof of the price of tobacco at Hamburgh, 
 is derived from the deposition of John H. Schmidt*, who 
 states, that the price of Virginia tobacco there, from the 
 month of October, 1799, to the latter end of the year, was, 
 from three and nine-pence to four shillings a pound, Ham- 
 burgh currency ; but that he does not know the price in the 
 summer of that year, although Maryland tobacco was con- 
 siderably higher than Virginia, during that period. It 
 would seem that the sending the tobacco to Rotterdam has 
 saved those interested in the proceeds from 3,OOO to 6,OOO 
 dollars, if the price at Hamburgh, in the summer of 1799, 
 was not higher than in the fall of that year, and the year en- 
 suing. 
 
 There is no proof in the cause, that, on account of the 
 
 * 33 failures at Hamburgh, the tobacco was unsaleable ; *on the 
 
 contrary, it appears that the sugars were sold, and that in Oc- 
 tober, 1799, tobacco was saleable. 
 
 From this state of facts arises the question, whether the 
 respondent is to be holden responsible for the deficiency of 
 the sales ? and, in my opinion, he is not responsible. Th* 
 contract he has entered into, obliges him to endorse Lerem*
 
 STATE OF NEW-YORK. 33 
 
 boure's note for the deficiency of the proceeds of the sales ALBANY, 
 at Hamburgh. The place of the sales is, in my conception, \^^~^-^j 
 not only a condition precedent, but it enters into the sub- D - & G - Luiilow 
 stance of the contract. It may not appear, at first view, at Simoud. 
 all material where the sales were made, provided the goods 
 were sold for the best price that could be obtained ; but it 
 will, on examination, appear extremely important to the re- 
 spondent, that the sales should have been made at Ham- 
 burgh, rather than Rotterdam. Whether, however, this be 
 or be not material, if Hamburgh was agreed by the contract 
 to be the place of sale, then on principles, as applicable to 
 sureties, the respondent is discharged. 
 
 That Hamburgh was the designated place of sale is mani- 
 fest, not only from the words of the contract, but from 
 its plain and evident meaning. The goods were consigned 
 to Euildemaker & Co. to be sold ; the consignment to this 
 house, transacting business at Hamburgh, a great commer- 
 cial city, imports, in itself, that the sales were to be there. 
 The insurances extending no further than to Hamburgh, is 
 still more demonstrative of the sense and understanding of 
 the parties, that they were to go no further. The want of 
 provision in the contract for any other market, and, above 
 all, the express terms of the contract, whereby *the respond- * 34, 
 
 ent engaged to endorse Leremboure's note for the deficiency 
 of the proceeds of the sales at Hamburgh, leave, I think, 
 not a particle of doubt on that subject. 
 
 This case is, then, perfectly analogous to the case in 2 
 Chan. Cos. 22. where a bond was given by a principal and 
 his surety, to pay such sum as N. H. a master in chancery, 
 should report. The master agreed on died without making 
 a report. The chancellor determined on the principle I 
 have stated, that the surety, not being bound at law, shauld 
 not be holden in equity. 
 
 The sales not having been made at Hamburgh, is, I think, 
 matter of substance. I have observed already, that the ap- 
 pellants gave their notes on the llth of March, and 6th of
 
 34 CASES IN ERROR IN THE 
 
 ALBANY, April, 1799. The first became payable the 14th of July, 
 t J^' ' j and the last the 9th of October, in that year. The appel- 
 D. & G. Ludimv lants contemplated, beyond a doubt, to meet these notes by 
 Simond. drafts on London, at sixty days sight, and for that purpose 
 Leremboure authorized them to draw bills, twenty days be- 
 fore their notes respectively became due, and to order the 
 necessary remittances to be made by Buildemaker & Co. to 
 their friends in London, on whom they might value to meet 
 their drafts. From this arrangement the respondent must 
 have contemplated, when he entered into the contract, that 
 the cargoes thus shipped were to be sold, so as to form a 
 fund for the payment of the bills to be drawn by the ap- 
 pellants, and that the term of his responsibility would not 
 be extended beyond the last of the year 1799. Instead of 
 this, by the transportation of the goods to Rotterdam, the 
 *" 35 period of his responsibility was enlarged to *the 30th of Sep- 
 tember, 1800, a time far beyond any ideas he could have 
 formed from the provisions of the contract. Had it not 
 been thus enlarged, and the goods been sold for the lowest 
 possible price at Hamburgh, he might, for aught that ap- 
 pears, have secured himself before Leremboure became in- 
 solvent. As irt the case of Rees v. Berrington, 2 Ves. jun. 
 543. so here, in the language of Lord Loughborough, " we 
 cannot try the cause by inquiring what mischief it may have 
 done ; (to send the good* to Rotterdam;} for that would go into 
 a variety of speculation, upon which no sound principle 
 could be built." 
 
 To hold the respondent liable, notwithstanding the terms 
 have not been complied with, on which alone his responsi- 
 bility was to arise, would be substituting another contract 
 in lieu of the one the parties have made. It is impossible 
 to say, that a contract, agreeing to be responsible for the de- 
 ficiency of the proceeds of sales at Hamburgh, ought to be 
 construed to be a contract to be responsible for the defi- 
 ciency of the proceeds of sales at Rotterdam. 
 
 It has been urged by the appellants' counsel, that Builde- 
 maker & Co. were not exclusively their agents, and that they
 
 STATE OF NEW-YORK. 35 
 
 acted without their directions, in sending the goods to Ret- ALBANY 
 terdam, and that they had, by law, a right to send them to a ,* t0o< . 
 neighbouring marlfet for a better price. D. & G. Ludlow 
 
 It will not, I trust, be contended, that had the appellants simi'md. 
 
 ordered the goods to Rotterdam, in case a higher price could 
 
 have been there obtained, that, then, the respondent would 
 have been liable. If, in that case, all responsibility would 
 have been gone, how can it alter the case, as respects the re- 
 spondent, *by what means the goods were sent there ? He * 36 
 had no control over them ; and if his responsibility is ex- 
 tended beyond the terms of his contract, however hard the 
 case may be as regards the appellants, it would be harder as 
 respects him. If, by law, an agent receiving a consignment 
 of goods to sell, may send them to another market, which I 
 am not prepared to admit, then the appellants may be 
 chargeable with negligence in not instructing Buildcmaker 
 & Co. to sell at Hamburgh. But if, as I incline to think, 
 they could not, as consignees, have sent their goods to ano- 
 ther market, they would, under the facts proved in this case, 
 be responsible to the appellants, unless they have affirmed 
 their acts, and thus concluded themselves. u A man may," 
 says Chief Justice Wtlles, in kis Reports, p. 407. "in many- 
 cases, either consider another as a wrongdoer, or a receiver 
 of money for his use, as he thinks best, and most for his 
 advantage." In this case, the appellants have, it appears to 
 me, affirmed the acts of Ruildemaker & Co. in selling the 
 goods at Rotterdam, by receiving their accounts, and pass- 
 ing the proceeds of the sales there, to the credit of Lercm- 
 loure. This fact appears by the accounts exhibited by the 
 appellants. It then turns out to have been a sale at Rotter- 
 dam, contrary to the contract, assented to by matter ex post 
 facto by the appellants, and this I consider another insu- 
 perable difficulty to t^eir recovery. 
 
 The amount in demand, and the learned and ingenious 
 arguments submitted to the court, have induced all the re- 
 search and examination in my power to bestow. The i le.ir 
 and decided result is, that the respondent is discharged from
 
 sr* CASES IN ERROR IN THE 
 
 ALBANY, his responsibility on the #contract ; and, although I per- 
 
 . ceive that the appellants have conducted themselves with 
 
 ft. & G. Liuiiow perfect good faith ; that the loss is, to them, a severe mis- 
 
 Siiwind fortune, I am unwilling to restore them their losses, by 
 
 : inflicting an injury on a man having a perfectly legal and 
 
 meritorious defence. In my opinion, therefore, the decree 
 of the Chancellor must be affirmed with costs to be taxed. 
 
 THOMPSON, J. This case naturally divides itself into 
 two general subjects of inquiry: 1st. As it respects the 
 remedy, whether, if any, it ought to be in a court of law, 
 or in a court of equity ? 2d. As it respects the rights of the 
 parties. 
 
 The first may be considered, in some measure, as matter 
 of form ; the second as matter of substance ; and although 
 it might be deemed more correct, in point of order, to de- 
 termine the right before the remedy, yet, as I shall exa- 
 mine both questions, not knowing the course that may be 
 pursued by other members of the court, the order of exa- 
 mination becomes immaterial. 
 
 There are several grounds, I think, upon which the ap- 
 pellants had a right to go into equity for relief. 
 
 It is undoubtedly important to the ends of justice, that 
 the boundary between the jurisdiction of courts of law and 
 courts of equity, should be plainly marked and strictly pur- 
 sued. Were, indeed, the present an attempt to overleap 
 the boundaries heretofore established, it might present a dif- 
 ferent question ; but that, I think, is not the case here. By 
 the ancient rule, according to Lord Coke, 4 Inst. 84. the ju- 
 risdiction of the court of chancery was confined to frauds, 
 * 38 accidents and trusts. So in 10 Mod. Rep. I. *But that 
 
 jurisdiction has been gradually extended, and Fonblcinqiie,va 
 the first volume, page 8. of his valuable treatise, observes, 
 that the English courts of law are, equally with their courts 
 of equity, chargeable with having extended their jurisdic- 
 tion by the aid of fiction ; and that if courts of equity, pro- 
 fessing to proceed upon the ground of the party being re-
 
 STATE OF NEW-YORK. 38 
 
 mediless at law, to take cognisance of some matters, of ALBANY, 
 which courts of law would now take cognisance, they will ^ ' , 
 
 be found originally to have derived their jurisdiction from D. & G. 
 the narrow decisions of courts of law, and having once simond. 
 
 strictly possessed it, courts of law ought not to be at liberty 
 
 at pleasure to deprive them of it. The jurisdiction, he again 
 says, page 11. exercised by courts of equity may be consi- 
 dered, in some cases, as assistant to, in some, concurrent 
 with, and in others, exclusive of, the jurisdiction of courts 
 of common law. 
 
 Matters of account form one class of cases, wherein courts 
 of law and equity exercise concurrent jurisdiction. Black- 
 stone^ 3 Comm. 437. lays it down as extending to all matters 
 of account; and it is a subject, I think, over which the ju- 
 risdiction of a court of equity ought to receive a liberal con- 
 struction, because, the mode of proceeding is more pecu- 
 liarly adapted to a deliberate examination, and correct set- 
 tlement. All parties in the present case, were interested 
 in having the account stated. The result was the basis, 
 upon which the respective rights, and responsibilities of the 
 parties depended. The account being to be stated by the 
 appellants themselves, cannot alter the question. The 
 other party had a right to contest it, and the same examina- 
 tion might be involved *as if the defendants below had been # 
 called upon to account. In matters of account both parties 
 are actors. 1 P. IVms. 363. Hence it is, that after a de- 
 cree to account, a defendant may revive the suit ; because, 
 say the authorities, in such case the defendant is consider- 
 ed as an actor ; for, until the account is taken, it is not 
 known where the balance lies. Although the account, as 
 stated, was admitted by Leremboure, it was not by Simond. 
 
 The necessity of a discovery might originally have been 
 the foundation of the jurisdiction of a court of chancery, in 
 matters of account ; still I cannot discover from authorities, 
 that it is now restricted to cases of that description. Mit- 
 ford, 111. says, that in matters of account, equity has a 
 concurrent jurisdiction with courts of common law, in cases
 
 59 CASES IN ERROR IN THE 
 
 ALBANY, where no difficulty would have attended the proceeding in 
 
 v^V!^, those courts. S. P. 3 P. Wms. 251. n. A. And I can see 
 
 p. & G. Ludiow no good reason why a trustee, who is desirous of having 
 
 Simond. his accounts settled, should not be at liberty to call the 
 
 ----- " ' cestui que trust into a court of equity for that purpose. 
 
 There is another ground, I think, for sustaining the bill. 
 Leremboure had refused to give his note for the deficiency, 
 and it may be doubtful, whether a specific performance in 
 this respect was not necessary for the purpose of charging 
 Simond. If also, any fraud or collusion had been practised 
 between them, it would, in a peculiar manner, be an ob- 
 ject of chancery jurisdiction. 
 
 The transaction was complex, the remedy at law diffi- 
 cult. 1 Stra. 733. Mr. Justice Duller, when sitting for 
 
 4O the Lord Chancellor, in the case of Weymouth v. *Boyer, 
 
 1 Ves. jun. 424. says, " we have the authority of Lord 
 ffardwicie 9 that if a case be doubtful, or the remedy at law 
 difficult, he would not pronounce against the jurisdiction of 
 this court, and the same principle has been laid down by 
 Lord Bathurst." Matters of account are proper subjects 
 for a court of equity. \ Atk. 128. It does not follow, 
 that because a court of law would give relief, a court 
 of equity loses the concurrent jurisdiction, which it has in 
 matters properly cognisable there. 3 Bro. Ch. Ca. 224. In 
 Wright v. Hunter, 5 Ves. jun. 794. the master of the rolls 
 says, " I would not lay it down, that because courts of law 
 may entertain actions upon such subjects," (a case of con- 
 tribution among partners,) " a party may not file a bill for 
 contribution ;" for though he thought the question more 
 proper to be tried at law, the plaintiff was very well justifi- 
 ed in coming there ; " for," he adds, " this court has never 
 given up its jurisdiction." 
 
 Independent, however, of the foregoing considerations, 
 I am inclined to think the respondent conies too late with an 
 objection to the jurisdiction of the court, he having answer- 
 ed, and contested the merits, the subject matter of the bill 
 being within the jurisdiction of the court. This appears to
 
 STATE OF NEW- YORK. 4O 
 
 me, to be a reasonable rule, and calculated to save ex- ALBANY, 
 penses. It is a good general principle, that where a party 
 objects to the jurisdiction of a court, he ought to do it at D - & G - 
 the earliest opportunity. - I would not, however, be under- Simond. 
 stood to extend this rule, to cases where the subject mat- 
 ter is not within the jurisdiction of the court. Baron Gil- 
 bert, in his History and Practice of the Court of Chancery, 
 says, page 219. "where the common law *would give the * 41 
 
 same relief as a court of equity, there, if the defendant 
 would deny the deed, and demur to the relief, the demurrer 
 would be allowed ; but if the defendant doth not demur to 
 the relief, the court will decree for the plaintiff on the hear- 
 ing, after the deed is properly proved ; because the de- 
 fendant admitted the jurisdiction by answering and putting 
 it in issue, and not demurring." Again, page 51. " where 
 a plaintiff goes into a court of equity, for damages, which 
 are uncertain and not to be settled but by a jury, the de- 
 fendant may demur to the relief after having first answered 
 to the damages ; because it is alieni fori^ since the court 
 cannot settle the damages." But this must be ante litis 
 contestationem ; for if he answers and contests with the 
 plaintiff, he can take no advantage of it at the hearing j for 
 he has submitted to the jurisdiction of the court, and the 
 court will not try at law the quantum of damages by a feign- 
 ed action. 1 Vcz. 446. I am therefore of opinion, that tht 
 objection to the jurisdiction of the court was not well 
 founded. 
 
 But as the result of my opinion is with the respondent, it 
 is of little moment, as it respects the present case, whether 
 the appellants have resorted to the proper fomm for redress 
 
 or not. 
 
 
 
 The first question presented, on this part of the case, re- 
 lates to the execution of the contract, on the part of the ap- 
 pellants. It purports to have been executed in the name 
 of Daniel Ludloiv &? Co. being the name of a firm, com- 
 posed of Daniel & Guihm Ludlozu. The signature must 
 necessarily have been written by one only of rhe company,
 
 41 CASES IN ERROR IN THE 
 
 ALBANY, and as it is a settled rule of law, that one partner cannot 
 \_^ ^L/ ^bind his copartner by seal, it is contended that the con- 
 
 D.^ G^LudUnv tract is invalid. Had the execution been by one of the 
 Simomi ^ rm without the assent of the other, the objection might 
 be well grounded ; but from the testimony, the fact ap- 
 
 pears otherwise. T\vo witnesses testify, that they saw 
 Daniel Ludlow and Gulian Ludlow execute the contract. It 
 is said, however, that this testimony is equivocal ; that the 
 witnesses intended probably to be understood that they 
 executed it in the usual and ordinary mode, in the course 
 of the partnership concerns, by one only of the company. 
 This inference appears to me not warranted by the lan- 
 guage of the witnesses. They speak of the parties indivi- 
 dually, not as a company ; and had not Daniel Ludlow and 
 Gulian Ludlow both been present, and assented to the exe- 
 cution, the language of the witnesses doubtless would 
 have been, that they saw the contract executed by the one, 
 who subscribed the name of the company. The interroga- 
 tory part to the witnesses was, " did you or not, see 
 Daniel Ludlow and Gulian Ludlozv execute the deed?" 
 Taking it for granted, from the evidence, that Daniel and 
 Gulian were both present, and assented to the execution, 
 and probably both acknowledged the seal, I think the con- 
 tract well executed, according to the principles settled in 
 Lord Lovelace's case, Sir W. Jones, 268. and Ball v. Duns- 
 terville, 4 D. & E. 314. 
 
 I shall next examine the character which the respondent 
 Simond assumes in this contract. This becomes neces- 
 sary ; because, from the whole current of authorities, it is 
 manifest, that where a party is charged as surety, he has 
 * 43 a right to avail himself of a strict *and literal construction 
 
 of his contract, in order to exonerate himself from respon- 
 sibility. 
 
 In examining this question, we have principally to resort 
 to the contract itself. In expounding it, the cardinal rule 
 is, that the intention of the parties ought to be sought after, 
 and carried into effect, and to govern the construction,
 
 STATE OF NEW-YORK. 43 
 
 where, from the instrument itself, that intention can be dis- ALBANY, 
 covered. In viewing the general nature and object of this > '' , 
 
 contract, and the parties who were to be beneficially in- i>. & c;. 'mellow 
 terested in the speculation, I can consider Simond in no simond. 
 
 other point of light, than in the character of a mere surety. 
 
 It is the essence of a partnership transaction, that each part- 
 ner should be entitled to the gain, as well as exposed to the 
 loss resulting from the concern. That was not the case 
 here, for it is expressly provided, that if the proceeds of 
 the several shipments, shall exceed the amount due Daniel 
 Ludloiv & Co. it shall be paid to Leremboure. Every fea- 
 ture of the contract shows, that Simond was not concerned 
 in interest. The shipments were to be made by Lerem- 
 boure. The notes to purchase the cargoes were ttf be fur- 
 nished to them. The sales were to be made on his account 
 and at his risk. The policies of insurance were in his 
 name, and by him to be assigned. The loss, if any, at the 
 winding up of the speculation, to be borne by him ; for the 
 contract expressly states, that " A. M. Lcrcmboure agrees 
 to make good the deficiency when ascertained." The 
 mode of doing it, however, was by giving his note, with 
 Simond's endorsement. The appellants, in their bill, pray, 
 " that the accounts between them, and the said Lercmboure, 
 arising under the said ^agreement, may be taken and * 44 
 
 stated." Not that the accounts between them, and the 
 said Leremboure and Simond, might be taken and stated, 
 which would have been the prayer, had they conceived 
 Simond beneficially concerned. In addition to this, Simond^ 
 in his answer, under oath, solemnly denies having any in- 
 terest in the contract, and this is not contradicted, or in 
 any manner rebutted, by the appellants. 
 
 Simond, then, being considered a mere surety, it be- 
 comes necessary, in order to determine his liability, further 
 to examine the contract, and see what was to be done by 
 the parties respectively, for the purpose of determining 
 how far each one has complied with his obligation imposed 
 by the contract, and the law applicable to this case. There 
 
 Ff
 
 44 CASES IN ERROR IN THE 
 
 ALBANY, is no necessity, however, of minutely examining all the 
 
 Feb. 1805. , . , . , , , r 
 
 v_ < _ " -^_' stipulations, contained in the agreement ; no breach 01 
 D. & G. Ludlow them is alleged on either side. Leremboure, on his part, 
 Simond. purchased and shipped the cargoes pursuant to his con- 
 " tract ; caused them to be insured, and duly assigned the 
 policies to the Luc/lows. The Ludlows, on their part, fur- 
 nished Lerembourc with the means of purchasing these car- 
 goes, and consigned the bills of lading, which were given, 
 to them, to Buildemaker &? Co. their correspondents at 
 Hamburgh, according to the stipulations of the said agree- 
 ment. But the principal controversy relates to the time 
 and place of selling these shipments ; and whether, in that 
 respect, there has been any laches on the part of the appel- 
 lants, so as to take away their right of calling on the surety 
 to make good the loss. Here I would premise, as it was 
 made a topic of argument by the counsel, that I see no 
 
 * 45 ground for alleging fraud or ^collusion, either against 
 
 the complainants, or the respondent. But the case pre- 
 sents an honest struggle, to shift the burthen of a very- 
 heavy loss. 
 
 There is no time expressly limited by the contract, with- 
 in which the shipments were to be disposed of ; but from 
 the other provisions in the agreement, I think the intention 
 of the parties in that respect may easily be discovered. It 
 is fairly to be presumed, that the complainants did not in- 
 tend to advance cash, for the purchase of these cargoes ; 
 but only to lend their names and credit to Leremboure, for 
 that purpose. The first shipment was made on the llth of 
 March, 1799. The notes furnished by the complainants 
 of that date, payable in six months, according to the con- 
 tract, would fall due the 14th of September, and those 
 payable in four months, would fall due the 14th of July. 
 The second shipment was on the 6th of April, 1799. The 
 notes furnished of that date, payable in four months, would 
 fall due the 9th of August. The amount of the complain- 
 ants' notes, furnished to Leremboure, wzs 36,431 dollars 88 
 cents, which fell due in the proportion, and at the times
 
 STATE OF NEW-YORK. 45 
 
 following, to wit, 2,697 dollars 99 cents, on the 14th of ALBANY, 
 July ; 13,733 dollars 89 cents, on the 9th of August, and 
 20,000 dollars on the 14th of September. According to the D. 
 usual course of a voyage between Neiv-Tork and Ham- 
 
 burgh, calculating on a ready market, the proceeds ot these 
 
 shipments would have been received in season to answer 
 the complainants' engagements. This is fortified by the 
 appellants' own showing, in the account current annexed to 
 their bill of complaint. From that it appears, that they 
 must, as early at least as the 16th of "July, have received 
 the certificate of the sugar's having been landed at */fa?- # 46 
 
 burgh) which was necessary to entitle them to the draw- 
 back. The sugar was shipped on the 6th of April ; from 
 that to the 16th of July, is but little more than three 
 months. The appellants' notes were payable at four and 
 six months, making an allowance for unforeseen delay. 
 Hence I think it reasonable to conclude, that the appel- 
 lants calculated to meet the payment of their notes, with 
 the proceeds of these shipments, and that Simond, the 
 surety, probably made the same calculation. In case 
 Daniel Ludiow & Co. should not be reimbursed by the 
 policies of insurance, they were authorized to draw for that 
 purpose at sixty days' sight on London, twenty days before 
 their notes respectively became due. According to these 
 data, the last draft might have been made on the 24th of 
 August; the answer to which, making very liberal al- 
 lowances, would, probably, have been received here as 
 early as December, at which time Simond had a right to 
 calculate that the speculation would have been wound up, 
 and the result of his responsibility known. 
 
 The contract, I think, carries stronger internal evidence 
 with respect to the place, than with respect to the time of 
 sale. There can be but little doubt, but that the contem- 
 plated place of sale was at Hamburgh. The appellants 
 stipulate to make the consignment to their correspondent at 
 Hamburgh. That part of the contract providing for the 
 deficiency, declares, that u should the proceeds of the sale
 
 46 CASES IN ERROR IN THE 
 
 ALBANY, at Hamburgh, not prove sufficient," &c. The vessel sailed 
 
 v for Hamburgh, and the insurance was for the same place. 
 
 D. k fi.Liuiiow The last is a strong circumstance, showing the understand- 
 
 Simond. * n S f t ' ie P ar '' es i wu h respect to the place ; because, the 
 
 policies were to be assigned to the appellants *as security, 
 
 which would altogether have failed, had a loss happened af- 
 ter the vessel left Hamburgh, on a voyage to another 
 market. 
 
 Another question for examination is, the relation in 
 which Ruildemaker &? Co. must be considered as standing to 
 the respective parties. 
 
 The object of the appellants manifestly was, to have the 
 disposition of these shipments, and the proceeds, completely 
 under their control and management. They themselves 
 irig.it be considered as trustees for Leremboure, with a lien 
 upon the property, for their advances and commissions. 
 It would not, however, have been in the power of Lerem~ 
 bovre to have called the property out of their hands, or 
 counteracted their orders, until such lien had been dis- 
 charged. There is nothing in the transaction showing that 
 Buildemakcr & Co. knew any other persons than the appel- 
 lants, were interested in the shipments. The bills of la- 
 ding were in their names. The consignment made by 
 them. They to order with respect to the remittances ; and, 
 in short, to have the uncontrolled direction for the purpose, 
 of reimbursing themselves. Under such circumstances, I 
 can conceive Buildemaker & Co. in no other light than as 
 the immediate agents of the appellants. It would be in- 
 congruous to consider them the agents of Lcrcmboure, and 
 still he to have had no control over them ; and to have per- 
 mitted him to have had any control, might have defeated the 
 Ludtorvs* security in some measure. But admitting Builde- 
 maker &? Co. to have b*en the joint agents of the appellants 
 and Lerembonre, it cannot affect the rights of Sinwnd. His 
 liability could not be prolonged or increased without his 
 assent.
 
 STATE OF NEW-YORK. * 48 
 
 what respects, then, has there been a variance in the ALBANY 
 execution of this contract, from what may reasonably be ,* ' 
 
 supposed to have been the understanding and intention of D. & G. Ludlow 
 the parties ? I think there has been a deviation both with Sim'omi. 
 respect to time and place. The final winding up of the 
 speculation has been prolonged from some time in Decem- 
 ber, 1799, to September, 1800; and the sales of the tobacco 
 were at Rotterdam instead of Hamburgh. The appellants 
 having the control over this property, in the characters of 
 trustees for Leremboure, it was their duty to have made 
 use of more diligence in the disposition of it ; or if, from 
 a change of circumstances at Hamburgh, any embarrass- 
 ments were thrown in the way, Leremboure and his surety 
 ought to have been apprized of it. The forbearance of a 
 trustee, in not doing what it was his office to have done, 
 shall, in no sort, prejudice the cestui que trust, since, at 
 that rate, it would be in the power of trustees, either by 
 not doing, or by delaying to do their duty, to affect the 
 
 rights of other persons. 3 P. Wms. 215.t It is not rea- t J^hmere . 
 
 XuriofCariuie. 
 
 sonable to suppose the appellants were ignorant or the con- 
 duct of Buildtmaker & Co. in sending the tobacco to Rot- 
 terdam. They had not been reimbursed for their advances ; 
 the proceeds of the tobacco, as well as the sugar, were to 
 make the fund to which they were, in the first instance, to 
 look for reimbursement. In addition to this, the account 
 current, annexed to the appellants' bill, shows, I think con- 
 clusively, that they must have been apprized of it. They 
 continue drawing, at different times, on Buildemaker &? Co. 
 until the 13th of August, 1799. They then stop, and no 
 further draft is made until September, #1800. Why this * 49 
 
 delay ? They were not reimbursed ; they must have known 
 the fund, first to be resorted to for that purpose, was not 
 exhausted, or they would have called on Leremboure and 
 Simond for the deficiency. They wait, however, for one 
 whole year, and then draw upon Buildemaker & Co. for 
 the proceeds of the tobacco. By this, I think, they affirm 
 the conduct of Buildcmaker &? Co. in sending the tobacco
 
 49 CASES IN ERROR IN THE 
 
 ALBANY, to Rotterdam, if it was unauthorized in the first instance. 
 
 Feb. 1S05. ivnies^ 407. It is unnecessary here to say, what ought to 
 
 D&n^itiitiow be the decision as between Ludlows and Buildemaker & Co. 
 
 ,. v - , or between Ludloivs and Leremboure. It appears to me, 
 
 Simoml. . . 
 
 however, to be allowing agents a very considerable latitude 
 
 of discretion to justify so material an alteration of the des- 
 tination of a cargo, as from Hamburgh to Rotterdam; 
 from a neutral to a belligerent port. Yet, where agents act 
 in good faith, a very liberal construction ought to be given 
 to their conduct. Very different rules prevail when the 
 rights of sureties are involved ; as against a surety the con- 
 tract cannot be carried beyond the strict letter of it. 2 D. 
 & E. 37O. A party cannot oblige a surety to remain such, 
 contrary to his consent, longer than the time first bargained 
 for. 2 Bro. Ch. Rep. 582, 583. Delay granted to the 
 principal will discharge the surety. 2 Ves. jun. 542. The 
 engagement of Simond was definite, to wit, to endorse 
 Leremboure's note for the deficiency of the proceeds of the 
 shipments to reimburse Ludlows. This deficiency, how- 
 ever, to be ascertained, in the manner and within the time 
 prescribed by the contract. This Simond had a right to de- 
 mand. In the case of Wright v. Russel, 3 Wils. 359. the 
 
 * 50 court *said, " a surety ought not to be bound beyond the 
 
 scope of his engagement. That courts of equity are fa- 
 vourable to sureties ; for, where they are not strictly bound 
 at law, a court of equity will not bind them." This doc- 
 trine was recognised, and very much approved of, by Lord 
 Kenyan, in the case of Myers v. Edge, 7 D. & E. 256. 
 Where any act has been done by the obligee, that may in- 
 jure the surety, equity will discharge him from his liability. 
 4 Ves. jun. 833. In the present case, the appellants, by pro- 
 longing the winding up of this contract, exposed the surety 
 to greater hazards, among which the insolvency of Lereni- 
 boure was no inconsiderable one, as the result has shown. 
 The case of Simpson and Field, 2 Ch. Ca. 22. is a strong 
 one to show the rigid construction adopted by courts to 
 protect sureties, and also that equity will not bind them 
 
 3
 
 STATE OF NEW-YORK. 50 
 
 farther than they would be bound at law. The case was ALBANY, 
 shortly as follows : the defendant was bound, as surety, in 
 a recognisance conditioned to pay what should be reported D - 
 by A 7 ". H. a master named in the condition. The master 
 died before the report was made, and, by the strict letter 
 of the condition, the defendant was not suable at law, be- 
 cause the report was not made by the master named, but by 
 another. The Lord Chancellor dismissed the bill, saying, 
 the party is but a surety, and not bound at law. The same 
 principle we find recognised in the cases of Ratdijf v. 
 James, 1 Vern. 196. and Sheffield \. Lord Castk'tcn, 2 
 Vern. 393. and numerous others that might be cited. 
 
 If the view which I have taken of the contract be cor- 
 rect, and the deduction made be warranted by the case, 
 the respondent stands protected by a host of authorities. 
 ^However honest and upright the conduct of the appellants # 51 
 
 may have been, they are chargeable with such a deviation 
 from the contract, and such a want of due diligence in 
 winding up the speculation, as will, in judgment of law, 
 exonerate the surety. I am, therefore, of opinion, thnt 
 the decree of the court of chancery ought to be affirmed. 
 
 KENT, Ch. J. In the discussion of this cause, two 
 leading questions have been raised, both of which have 
 been very elaborately and ably considered by counsel. The 
 one question relates to the mode of seeking redress, and 
 the other to the merits of the controversy. It is necessary 
 that I should give each of them an examination, and this I 
 shall do in the order in which they are stated. 
 
 The first question then is, whether the court below had 
 jurisdiction of the cause ? 
 
 I incline to the opinion, that the court had jurisdiction ; 
 1st. Because matters of account were involved ; 2d. Be- 
 cause the remedy, at law, was, at least, doubtful ; 3d. Be- 
 cause the defendant, instead of demurring to the bill, sub- 
 mitted to the jurisdiction by putting in an answer to the 
 merits.
 
 51 
 
 ALBANY, The bill stated, at large, the contract between the ap- 
 pellants and Leremboure and Simond, and the history of the 
 
 D. it G. Ludlow commercial adventure which arose out of that contract. It 
 Simond ^ en stat ed, that a considerable loss happened on the sales 
 
 abroad, and that the accounts, relative to the transaction, 
 
 were presented to Leremboitre, who acknowledged them to 
 be just, but refused to give his note as stipulated by the 
 agreement, and that both he and Simond refused to pay to 
 the appellants the balance due them on the contract. The 
 bill ^further stated, that difficulties would attend their 
 proceeding at law, and prayed that the accounts respecting 
 the transaction might be taken and stated, and the balance 
 paid. 
 
 These accounts embraced the whole process of the ad- 
 venture, from its commencement to its conclusion, and, 
 consequently, consisted of a variety of charges and credits. 
 As, then, one material part of the cause depended on a 
 settlement of accounts, I think it came properly within the 
 cognisance of the court. Chancery has a concurrent juris- 
 diction with the courts of law in all matters of account. 
 Whether this jurisdiction originally arose from the necessi- 
 ty of obtaining a discovery by the oath of the defendant, 
 or, in order to prevent a multiplicity of suits, is, perhaps, 
 not now material to inquire, since it has become well esta- 
 blished in cases where that necessity does not exist, and 
 where no difficulty would attend the remedy at law. Mitf. 
 Treatise, 109, 110, 111. 3 Black. Comm. 437. The cog- 
 nisance of all causes that lie in account, does, undoubtedly, 
 give a very broad jurisdiction to the court of chancery, but 
 the exercise of this jurisdiction has been found in practice 
 so convenient and salutary, that it has long since, by ge- 
 neral consent, rendered obsolete the common law remedy 
 by a writ of account ; and, although our statute prescribes 
 minutely the mode of proceeding by that writ, I doubt 
 whether there ever was an instance of such an action hav- 
 ing been prosecuted to effect in this state. The settlement 
 of accounts, if they are in any degree long or complex, is
 
 STATE OF NEW-YORK. 
 
 improper, if not impracticable for a jury. The statute, ALBANY, 
 
 , . r . , . ( ., Fsb. 1805. 
 
 therefore, in the writ ot account, provides, that the ac- -_,_ -^_/ 
 
 counts shall be ^submitted to auditors ; and, indeed, when D - & G 
 questions of account arise at law, in the common action of Simond. 
 
 assumpsit, they are pretty generally taken from a jury, "" * 53 
 
 and submitted by the court to referees, which the eourts 
 are authorized to do, with or without the consent of the 
 parties. 
 
 I know not of any rule limiting the cognisance of the 
 court of chancery to one species of accounts more than an- 
 other; or to matters of accounts against persons in any par- 
 ticular relation. Its jurisdiction extends to all matters of 
 account between individuals, in whatever relation they may 
 stand to each other. In this it has no more than a concur- 
 rent jurisdiction with the courts of law ; for the writ of ac- 
 count at law, is given by our statute, 1 Rev. Lcuvs, 94. in all 
 cases where one person is liable to account to another as 
 guardian, bailiff, receiver, or otherwise, and this renders 
 the writ more extensive than it was under the English law. 
 
 But it was objected upon the argument, that the appel- 
 lants were in the light of factors or trustees coming into 
 court to have their own accounts stated, and allowed against 
 their principal. This, however, they may well do. In bills 
 to account, both parties are considered as actors, or plain- 
 tiffs, and the defendant has the same advantage as if he had 
 himself instituted the suit. Dune's case, 1 P. Wms. 203. 
 Kent v. Kent, Prec. in L'h. 197. A trustee may go into 
 chancery to have an allowance made against his cestui que 
 trust, out of trust moneys in his hands. Oi this we have an 
 instance in the case of Gould v. Fleetwood, 3 P. Wms. 251. 
 n. (A). Guardians of great estates in England, are said to 
 pass their accounts yearly in the court of chancery, and this 
 is recommended *in Wood's Inst. 73. as a safe way to justify # 54 
 
 themselves, when the minor, at full age, shall call them to 
 a general account.
 
 ALBANY, Nor is it necessary that the responsibility of the defend- 
 
 ^ ^ , ant should be established before you can file a bill for an ac- 
 
 D. & G. Ludiow count. In most cases that responsibility, as well as the stating 
 
 Simond of the account, will be a point for litigation. It is sufficient 
 
 : chat the cause will involve an account in case of the liability 
 
 of the defendant. Both questions must be more or less 
 connected together in every case ; especially as to the ex- 
 tent of the engagement, and how far it will apply, in particu- 
 lar instances. 
 
 It was said, however, that there were no accounts to 
 state and settle in this cause, for the bill charges that Lerem- 
 boure had admitted the accounts to be just. But the an- 
 swer of Leremboure declares, he admitted them no further 
 than as to the correctness of the calculations ; and if he had, 
 his admissions could not have concluded Simond, who 
 would be entitled to have the accounts reliquidated, and the 
 deficiency stated, before the court would oblige him to per- 
 form his part of the contract. 
 
 For these reasons, I think the suit below was properly in- 
 stituted, and I should regret exceedingly, that any opinion 
 which might be given by this court, should tend to embar- 
 rass the benign and well settled jurisdiction of chancery, in 
 the unlimited cognisance of acccounts. 
 
 Aniithcr ground upon which the bill might be sustainable 
 is, that the remedy at law was, at least, doubtful. This has 
 been repeatedly held as sufficient to give the court of chan- 
 cery iunsdiction. Briton v. Hyde, 1 Atk. 128. I Vez. 331. 
 * 5$ Burrows v. Jemima. #2 Stra. 733. 1 Fes. jun. 424. f The 
 
 contract is susceptible of two constructions, upon one of 
 which there was clearly no remedy at law. If we take the 
 contract according to its grammatical construction, Simond 
 was bound only to endorse the note that Leremboure should 
 give for the deficiency, and the giving the note was a con- 
 dition precedent to the obligation of Simond. It may be 
 said, however, and that too with great force of argument, 
 that unless Simond was bound that Leremboure should give 
 the note, as well as that he should endorse it, the security 
 
 f- Weymouth 
 Jioyer.
 
 STATE OF NEW- YORK. 55 
 
 intended by the contract, would in a great degree vanish. ALBANY, 
 If we assume the first construction, there would be no re- _^. N 'X^/ 
 medyforthe appellants, without the aid of the court of .& G.^.ui tow- 
 chancery, for a suit at law would not lie for not endorsing a 
 note which was never drawn. In such a case, the assist- 
 ance of chancery would become essential, to compel the 
 making of the note, or to reach the case of fraud or collu- 
 sion between Lerembaure and Simond, in not giving the note. 
 The uncertainty, therefore, and the difficulty of an adequate 
 legal remedy, was a sufficient reason for sustaining the 
 bill. 
 
 It may be also a matter of doubt whether the contract 
 was valid in its execution, as a sealed instrument or spe- 
 cialty. The proof indeed is, that the witnesses saw the ap- 
 pellants execute the contract, and if we are to understand 
 them as meaning that both the appellants were actually pre- 
 sent, and united in executing it, it was a good execution ; 
 for several persons may enter into an obligation and bind 
 themselves by one seal. Lord Lovelace's case, Sir W. Jones, 
 268. Ball v. Dunsterville, 4 D. &? E. 313. But it may be 
 well doubted whether the witnesses *meant any thing 56 
 
 more than that the appellants executed the deed, in the 
 usual mercantile way, by one of them doing it in the name 
 of the firm; for the appellants state in their bill, that they, 
 or one of them, executed it, and that they supposed such 
 execution to be unexceptionable. If the fact really was, 
 that only one of the appellants executed the contract, it was 
 not a good execution at law, and it was necessary to re- 
 sort to equity, to try how far that informality in the execu- 
 tion might be corrected, as it was clearly founded in mis- 
 take. Sheffield v. Lord Caatleton and wife, 2 Vern. 393. 
 Chancery would not help a defective execution of a contract 
 against a surety. Crosby v. Middleton, 3 Ch. Rep. 53. and 
 Free. Chan. 309. contra, from whence, in 1 Fnt. 37. the 
 point is considered as doubtful.
 
 56 CASES IN ERROR IN THE 
 
 ALBANY, But admitting these grounds not to have been sufficient, 
 
 ^ Feb. isos.^ j n ^ rst mstance) t o have sustained the bill, the respond- 
 IX & G Ludlow en t came too late to object to the jurisdiction of the court, 
 Simond. after he had put in his answer to the merits of the cause. 
 * By answering in chief, instead of demurring, he submitted 
 his defence to the cognisance of the court ; and equity will, 
 and ought, in such cases, to retain the cause, provided the 
 court be competent to grant relief, and has jurisdiction of 
 the subject matter, as it manifestly had in this case, the con- 
 troversy being upon a matter of personal contract, and of 
 account. Billon v. Hyde, 1 Atk. 128. 1 Vez. 331. 3 Bro. 
 Pa. Cas. 525. Mitford, passim. Gilbert's Treatise on Chan. 
 51 53. 219, 220, 221. Penn\. Lord Baltimore, 1 Vez. 446, 
 447. This last reason why the cause was sustainable in the 
 court below, appears to me to be supported on the firmest 
 basis, both from the reason of the thing, and the weight of 
 authorities. 
 
 * 57 ^Having thus disposed of these preliminary or technical 
 
 questions, as to the jurisdiction of the court, I proceed, 
 secondly, to examine the merits of the case. 
 
 To perceive that Simond had no beneficial. interest in the 
 concern, and was but a mere naked surety for the per- 
 formance of a specific act, requires only a bare perusal oi 
 the contract. The formal beginning and conclusion of the 
 contract, do, indeed, seem to carry the agreement of the 
 parties to the whole instrument ; but we must examine the 
 body and the scope of the agreement, to judge of its mean- 
 ing and effect. On doing this, we shall immediately per- 
 ceive, that the agreement of each party is to have reference 
 only to such particular parts of the contract, as apply to 
 him; reddcndo singula, singulis ; and as Simond was only 
 a surety, it becomes important to consider and understand 
 well, the principles of law, which are applicable to him in 
 that character. 
 
 It is a well settled rule, both at law and in equity, that 
 a surety is not to be held beyond the precise terms of his 
 contract, and, except in certain cases of accident, mistake,
 
 STATE OF NEW-YORK. 37 
 
 or fraud, a court of equity will never lend its aid to fix a ALBANY, 
 
 reb. 1805. 
 
 surety beyond what he is fairly bound to, at law. Under- v^-^^^J 
 woodv. Stancy, 1 Ch.Ca.77. 1 Eq.Mr.W. K. pi. 2. 6. D. k G ; i*dtaw 
 Skip v. Huey, 3 Atk. 91. Crosby v. Midclleton, Free. Ch. Simond. 
 309. are cases where chancery has said it would fix a surety 
 for mistake or fraud. Wright v. Russcl, 3 Wils. 530. 
 Lord Arlington v. Merricke, 2 Sound. 411. Myers v. Edge, 
 7 D. fc? E. 254. Stratton v. Rastall, 2 D. fc? E. 370. Simp- 
 son v. Field, 2 Ch. Ca. 22. Ratcliffe v. Graves, 1 Fern. 
 196. .Atofe* v. Smith, 2 J5r0. C&. #- 579. Rees v. er- 
 ri-fcwi, 2 F<w. jun. 540. iaw v. E. In. *Comp. 4 Ves. * SS 
 
 jun. 833. are all cases in favour of sureties. This rule is 
 founded on the most cogent and salutary principles of pub- 
 lic policy and justice. In the complicated transactions of 
 civil life, the aid of one friend to another, in the character 
 f surety or bail, becomes requisite at every step. With- 
 ut these constant acts of mutual kindness and assistance, 
 the course of business and commerce would be prodigious- 
 ly impeded and disturbed. It becomes, then, excessively- 
 important to have the rule established, that a surety is never 
 to be implicated, beyond his specific engagement. Calcu- 
 lating upon the exact extent of that engngement, and hav- 
 ing no interest or concern in the subject matter for which 
 he is surety, he is not to be supposed to bestow his attention 
 to the transaction, and is only to be prepared to meet the 
 contingency, when it shall arise, in the time and mode 
 prescribed by his contract. The creditor has no right to 
 increase his risk, without his consent ; and cannot, there- 
 fore, vary the original contract, for that might vary the 
 
 risk. 
 
 In the present case, the respondent agrees to endorse a 
 ttote for Lerembeure; but that note was only to be required 
 upon the happening of a certain event. It was not amj 
 note that was to be given and endorsed ; but it was a note 
 to arise on the deficiency of the proceeds of certain sales at 
 Hamburgh, and it was to be given to complete a reimburse- 
 ment, which the appellants were first to seek for. by other
 
 58 CASES IN ERROR IN THE 
 
 ALBANY, ways and means, precisely defined. The contract provid- 
 ed, with a studied minuteness, the several modts by which 
 
 . & G. Ludlow the appellants were to seek a reimbursement. They were 
 Simond. ^ rst to resort to the policies of insurance, *made to cover 
 
 the shipments to Hamburgh, and which policies were to be 
 
 3*. 59 
 
 assigned to them. But this means could only be resorted 
 
 to in case of loss on the voyag;- ; and there was no such 
 loss, for the goods arrived sale at the porx of destination. 
 " Should this mode of reimbursement not take place," (to 
 use the words of the contract,) the appellants were then 
 authorized to draw, at sixty days' sight, on London* and 
 that too, twenty days before tbr.ir notes respectively be- 
 came due, and to order the necessary remittances to be 
 made by Buildemaker jf Co. to meet their drafts. These 
 drafts and orders were, of course, then, all to be made 
 and completed by the 22d of August, 1799, which would 
 be twenty days before the last of the notes became due ; 
 and, allowing the ordinary passage to London, the payment 
 of the last bills there, would have been to be made by the 
 1st of December, 1799. This was the second mode of re- 
 imbursement, provided for by the contract. But should 
 the proceeds of the sales at Hamburgh, " so disposed of," 
 to again adopt the terms of the contract, not prove suffi- 
 cient to reimburse the appellants, Leremboure was to make 
 good the deficiency, as soon as ascertained, by a note at 
 sixty days, to be endorsed by Simond. This was the last 
 and final mode of reimbursement, and upon which the pre- 
 sent controversy has arisen. The returns from London, of 
 the result of the proceeds of the sales at Hamburgh, " so 
 disposed of," would have arrived at New-York, in the or- 
 dinary course of transmission, by the middle of January, 
 1800, and this was the ultimate time which resulted from 
 the terms of the contract, for the completion of the specu- 
 lation, and which was to determine the extent of the re- 
 sponsibility of Simond. The calculation, as to the time when 
 3t g@ Simond *was to be ultimately called upon, is to be dedu- 
 
 ced from the contract, with almost as much precision and
 
 STATE OF NEW-YORK. 
 
 oertaintv, as if the contract had expressly fixed it at ALBANY, 
 
 * ' Feb. 1805. 
 
 January, 1800. v^ 
 
 The property in question was intended to answer the D. 
 bills on London, and reimburse the appellants. The re- 
 mittances, therefore, were to be made from Hamburgh by - 
 a certain time, because they were to meet a precise object. 
 Both the appellants and Leremboure must have contem- 
 plated the sales at Hamburgh to be made in the summer 
 of 1799, in order to guard against the immense loss in 
 damages that might result, if the remittances were not met 
 in London, by the 1st of December, 1799, to save the bills 
 from being protested. 
 
 The place of sale was clearly designated by the contract. 
 The property was to be consigned to Buildemaker & Co. at 
 Hamburgh, to be sold. The property was insured for 
 Hamburgh. The appellants to order the remittances to be 
 made by Buildemaker & Co. to London, and these orders 
 were all to be issued by the 22d of August, 1799. The 
 remittances were to be made at the risk of Leremboure, and 
 the contract further adds, that, should the proceeds of the 
 sales at Hamburgh be insufficient, &c. There was no 
 cover provided for risk in transmitting the property to any 
 other place. The ultimate hazard was to terminate there. 
 From all these facts and circumstances, I consider the in- 
 tent of the contract to be unequivocal and certain, that the 
 property was to be disposed of at Hamburgh. A place of 
 sale intended by a contract, is equivalent to a place of sale 
 stipulated by a contract. What, indeed, are stipulations in 
 *agrt ements, if they are not acts intended and contemplated 
 by the parties ? 
 
 This being the contract, let us next see with what preci- 
 sion it was executed. Instead of winding up the speculation, 
 and ascertaining the deficiency, in January, 1800, it was not 
 done till October, 1800; and instead of having the tobacco 
 sold at Hamburgh, in the summer of 1799, by Buildemaker 
 &? Co. it was sent over land, a distance of near 250 miles, 
 to Rotterdam; most of it not sold till July, 1800, and that
 
 (il CASES IN ERROR IN THE 
 
 ALBANY, t by a different house, Roquette Buildemaker & C; 
 
 v^^jfjj^j What reasons are given for this wide departure from the 
 
 D. & G. Ludlow terms of the contract ? It is stated and admitted, that, pre- 
 
 y 
 
 Simond. vious to the arrival of the cargoes at Hamburgh^ and which 
 
 - must have been early in June, 1799, many failures had 
 
 happened among the principal traders there, but the effect 
 that this calamity had upon the market or the price, is not 
 ascertained, and we are left altogether to conjecture. There 
 is no testimony as to the price of tobacco there, during the 
 summer. It is only proven, that from the month of October 
 to the end of the year, the price of Virginia tobacco was 
 from 3*. 3d, to 4-s. Hamburgh currency, per Ib. and so con- 
 tinued in 1800; while, for the same period, the price of 
 Maryland tobacco was considerably higher. I am willing 
 to admit, that Buildemaker &? Co. might have sent the 
 goods to a different market in cases of necessity ; such as 
 those resulting from fire, pestilence, or the invasion of an 
 enemy. But this necessity must be clearly made out, and 
 a strong case shown to justify a factor in changing the 
 place of sale, and the agents who are to conduct it. He, by 
 ** 62 this, exposes the property to unforeseen ^accidents, and, per- 
 
 haps, disconcerts all the arrangements of his principal. No 
 sufficient cause appears, in the present case, for the conduct 
 of the agents. Notwithstanding these mercantile failures, 
 there was no complaint of a want of market or price, as to 
 the sugars ; and it ought not to have been left to inference 
 only, but it should have been made affirmatively to appear, 
 that the tobacco could not have been sold during the sum- 
 mer of 1 T99. If to seek a better market was discreet, was 
 it requisite to go so far as Rotterdam, and pass by many 
 large commercial neutral sea-ports and cities, that were 
 much nearer? But this was not all. The property was 
 changed from a neutral to a belligerent port, at the very 
 time too, when Holland was perishing under the rapacity of 
 French armies, and the scourge of the Russian and British 
 invasion. This was exposing the property to a new, extra- 
 ordinary, and, in my opinion, a most unwarrantable hazard.
 
 STATE OF NEW-YORK. G2 
 
 In addition to the usual perils of a long transportation, and ALBANY, 
 
 r Feb. 18UJ. 
 
 new agents, it was exposing it to the very extremity oi war 
 
 risks. D. it G. Ludlow 
 
 Admitting, which I am willing to do, that Buildemaker fc? simond. 
 Co. acted with good faith in this transaction, and that the - 
 appellants never gave any directions as to the change of the 
 place of sale ; have not the latter done what, in judgment ot 
 law, is equivalent thereto ? It was a point very much liti- 
 gated upon the argument, whether Buildemaker & Co. were 
 the exclusive agents of the appellants, <5r only the concur- 
 rent agents of them and Leremboure. It does not appear 
 to me, to. be very material to determine this question, 
 either one way or the other ; for, it is sufficient they were 
 not the agents of Simond. He had *no agency or beneficial * 53 
 
 concern in the shipment, and no agreement, even between 
 the appellants and Leremboure, to send the property to Rot- 
 terdam, could have bound him. The contract, as to him, 
 could not have been varied without his consent. But, I 
 think, it results from the case, that the appellants have made 
 the act of Buildemaker & Co. their own. They were to 
 draw bills on London, in the summer of 1 799, and to order ' 
 the proceeds of the Hamburgh sales to be remitted there. 
 In this mode, and at this time, they were to seek a reim- 
 bursement, and it appears, from the account annexed to the 
 bill, that, during that summer, they drew on their agents for 
 30,777 dollars 90 cents. It is to be presumed, that they 
 were apprized very early of the determination of their agents 
 to send the goods to Rotterdam; for, after the 13th of Au- 
 gust, 1799, they discontinued their drafts, and, from that 
 time, they remained perfectly silent and passive, waiting 
 for the returns of the Rotterdam sales, until the 18th of 
 September, 1800, when they receive and credit Leremboure 
 with the amount of them, and then, for the first time, call 
 on him for the deficiency. This conduct amounted to an 
 affirmance of the acts of Buildemaker & Co. ; for, if an 
 agent steps beyond his authority, the principal may, at his 
 election, and as best suits his convenience, either consider 
 
 nh
 
 63 CASES IN ERROR IN THE 
 
 ALBANY, him as a wrongdoer, or he may affirm his act, and consider 
 him as a receiver of money for his use. Willes's Rep. 407. 
 
 D. & G. Ludlow This latter course the appellants thought proper to pursue, 
 
 Simond. an{ l, therefore, the sound, well known rule of law applies to 
 
 ~ ~ them, that the subsequent affirmance, by the principal, of the 
 
 unauthorized act of the agent, is equivalent to an original 
 
 * 64 order. This ^conclusion appears to me to result necessarily 
 
 from the facts. Buildemaker & Co. were, generally, speak- 
 ing, the exclusive agents of the appellants, in respect to this 
 mercantile adventure, though, perhaps, under certain cir- 
 cumstances, Lerembourej the cestui que trust, might have 
 interfered. But it is not requisite, in the view which I 
 take of the subject, to maintain absolutely this exclusive 
 agency. It is sufficient to say, that the transaction wa* 
 so conducted, that Buildemaker & Co. became, in fact, the 
 actual and effectual agents of the appellants, and being so, 
 the appellants not only, in the first instance, directed, but 
 in the last instance, affirmed their conduct, by a strict ac- 
 quiescence, for one year, in the sending of the goods to Rot~ 
 terdam, and then by expressly receiving, at their hands, the 
 * proceeds of the Rotterdam sales. If the appellants intended 
 to have pursued strictly the course of their contract, they 
 ought, so soon as they were informed that the tobacco was 
 sent off, and that the proceeds of the Hamburgh sales were 
 insufficient, to have then called on Leremboure with the as- 
 certained deficiency, demanded their note, and left him to 
 have pursued, at his own risk, the property, or the agent 
 who had misused it. They would then have been entitled 
 to their note, endorsed by Simond, for the deficiency, how- 
 ever great it might have been. It is their sanction of the 
 conduct of Buildemaker & Co. that makes it their own. 
 By that means they have so essentially varied the terms 
 of the conti~act, that the surety is no longer holden. 
 
 The case would not be altered, were it really true (of 
 which, however, we have not the requisite proof) that the 
 
 * 5 sending the tobacco to Rotterdam produced *a better price.
 
 STATE OF NEW-YORK. 65 
 
 This would be a mere accidental result. It might have ALBAXY, 
 been otherwise. But it is the principle in the transaction, 
 
 the variation of the contract, that discharges the surety. D. & G. 
 This principle is stable and uniform, not depending upon Simond. 
 the fluctuations of markets. Nor will it do to say, that ; 
 Simond shall have credit according to the best price at Ham" 
 burgh in 1 799, and be holden only for the deficiency. The 
 principle that releases a surety, under such circumstances, 
 is not to be modified by such a concession. It appears that 
 Lere mboure was insolvent in October, 1 80O ; but how long 
 antecedently he had been so, does not appear. If the con- 
 tract had been strictly pursued, it is possible that the surety 
 might have indemnified himself, as early as the beginning 
 of the year 1800. The variation of the contract may have 
 thrown him off his guard, and prevented him from holding 
 fast any fund in his possession, or from taking other pre- 
 cautions to indemnify himself, until it became too late to do 
 it with success. As we cannot know or anticipate the pos- 
 sible injuries that may ensue from a departure from the 
 terms of the contract, it is proper that the court should lay 
 down, and adhere to, a general rule on the subject. 
 
 For these reasons I am of opinion, that the decree of the 
 court below be affirmed with costs. 
 
 Per tot am cur lam. 
 
 Judgment of affirmance.
 
 66* CASES IN ERROR IN THE 
 
 AUBAtfY, 
 
 *John Bush, Appellant, 
 
 against 
 Livingston nnd Peter W. Livingston, and John Townsendj 
 
 Townsend. -,- , 
 
 .. Respondents. 
 
 A security made FROM the pleadings, and cases delivered in this cause* 
 
 On a good, and 
 
 bona fide co ns .i- fa Q f acls appeared to be these. 
 
 deration, cannot 
 
 beimpeRohedon Livingston, in the years of 1796 and 1798, borrowed of 
 
 account of a u- r i 11 
 
 Bui-ions trans- one Evertson, the two several sums or 3,000 dollars ana 
 
 fcr. Therefore, ,. , c , ... 
 
 K here a mori- 2,793 dollars on mortgage. 1 he day oi redemption having 
 fo^a 'vhirT K pe. d - elapsed, and Livingston being further indebted to Evertson, 
 Mh n a 't U h dae Pa on * r mtcrest anc ^ some other matters, amounting, with the 
 it to the mortga- a bove principal sums, to 6,222 dollars, Evcrtson demanded 
 
 gee, the mortga- 
 gor cannot avoid payment. In consequence of this, Livingston arranged 
 
 it in the hands . . , . r 
 
 of that third per- with him to pay 5,60O dollars cash, and give nis notes i< 
 
 son on account . . , rr-,1 ... ,-, T . rji 
 
 of an agreement die residue. I his being acceded to, Livingston applied t 
 sutn r , eP e a x y ce h e'ding Bush to advance the 5,600 dollars to Evertson, agreeing to 
 the money paid, repav it in 90 days, with a douceur of 400 dollars ; the mo- 
 
 and legal inte- * * 
 
 rest, though the ney thus advanced, and the douceur to be secured by an as- 
 excess will he 
 denied, and only signment from Evcrtson of the two mortgages, and their 
 
 the money actu- , - , 
 
 ally paid, and concomitant bonds ; eacn of the several assignments to ex- 
 lliowed. Int lf e8 i P ress S^ 000 dollars to be the consideration paid by Bush to 
 fore^thl^court ^ vertson ' These transactions being thus concluded, Busk 
 on appeal from K ave to Livingston the following receipt : " Received this 
 
 an interlocutory c 
 
 order, and the day, an assignment of one mortgage, bearing date the 4th 
 
 whole merits of . 
 
 the case appear, day of June, 1796, given by P. W. Livingston to Nicholas 
 
 tMhe a ftiudde- Evertson, and of another, bearing date the 30th day of Ja- 
 
 thT' chancellor nuar y-> 1798 > also S iven b y tne sai(1 Livingston to said Evert* 
 
 effect' Ty II mt son i to g et her #with the bonds accompanying the same, which 
 
 * 67 bonds and mortgages I acknowledge myself to hold, of the 
 
 said Livingston, as security for the payment of six thousand 
 
 dollars, in ninety days from this date, and upon payment of 
 
 said sum, I hereby agree with said Livingston to procure 
 
 the said bonds and mortgages to be cancelled. In witness, 
 
 &c. 22d July, 1799. 
 
 " JOHN BUSH."
 
 \ 
 
 STATE OF NEW-YORK. 67 
 
 The money not being paid, Bush, in September, 1800, ALBANY, 
 
 filed his bill to foreclose, against Livingston and several of ^J^^, 
 his judgment creditors, stating, among other things, " that Bush 
 
 Peter W. Livingston applied to the said John Bush, and re- Livingston and 
 
 c Tow n send 
 
 quested him to lend the said Peter W. Livingston a sum ot __ 
 
 money, and offered to secure the repayment thereof by pro- 
 curing an assignment from the said Nicholas Evertson to the 
 said John Bush, of the said bonds and mortgages." The 
 bill also set forth, that the assignments of the mortgages 
 were made " for a full and valuable consideration, paid by 
 the said John Bush to the said Peter W. Livingston, and by 
 him to the said Nicholas Evertson, as by the said assign- 
 ments, endorsed on the said indentures of mortgage, and 
 ready to be produced as the court shall direct, and to which 
 he for greater certainty refers himself, may appear." 
 
 Livingston put in his answer, and after admitting the 
 mortgages, demand of payment by Evertson, and his own 
 inability, added, that "being urged by his necessities, he 
 applied'to the complainant, John Bush, to borrow a sum of 
 money, to pay off the said bonds and mortgages, or the 
 greater part thereof, whereupon the said John Bush, taking 
 advantage of his necessities, offered to loan him 5,6OO dol- 
 lars, for ninety *days, if he, this defendant, would agree to 
 repa'y the same at the expiration of that time, and to allow 
 and pay, for the use and forbearance thereof for that time, 
 four hundred dollars, to which this defendant, under the 
 pressure of his necessities, agreed." The answer then 
 went on, and set forth the contract for the advance, in the 
 manner already stated, averring the douceur of 400 dollars 
 to exceed the legal interest, for the ninety days, of the sum 
 lent ; that, therefore, the securities -were void in the hands 
 of the appellant, and praying to have them decreed to be 
 given up to be cancelled. 
 
 ~ J In support of the answer, Livingston examined Evertson 
 as a witness, and he deposed, that the sum paid to him by 
 the appellant, was no more than 5,6OO dollars, which he
 
 68 CASES IN ERROR IN THE 
 
 ALBANY, considered as a loan from Bush to Livingston ; but that, as 
 
 Feb. 1805.^ to an ^ f urtner consideration for the assignment of the mort- 
 
 Bush gages, he was ignorant, though he acknowledged that he 
 
 Livingston and drew up the receipt given by Bush to Livingston on the ex- 
 
 nse " ecution of the assignment of the mortgages. 
 
 After publication had passed, and the cause, as between 
 Bush and Livingston, was ready for hearing, Livingston be- 
 came a bankrupt, and Townsend being duly appointed his 
 assignee, Bush,'m February, 1803, filed a supplemental bill, 
 making him a party. 
 
 Townsend, in his answer, admitting himself assignee of 
 the estate and effects of Livingston, craved the benefit of 
 the pleadings and proceedings on the part of Livingston, and 
 insisted on the several matters therein offered and insisted 
 on by Livingston, as a defence and bar to the complainant's 
 claim, which matters, he added, " he was informed and be- 
 lieved were true." 
 
 # 69 *The cause, as against Livingston, came to a hearing 
 
 upon the pleadings and proofs ; as against Townsend, upon 
 bill and answer, when the Chancellor made a decretal or- 
 der, directing an issue to determine whether the assign- 
 ment to Bush was a usurious contract, or one bona fide 
 made. As, however, no specification was made of the 
 evidence to be read on the trial of the issue, and the coun- 
 sel for the parties could not agree on what should be ad- 
 duced, application was made for directions as to the proofs 
 to be used, upon which his honour the Chancellor was 
 pleased to order, " that the parties have leave to read in 
 evidence the complainant's bill of complaint, the answer of 
 the defendant Peter W. Livingston, the mortgages in the 
 pleadings mentioned, and the assignments thereof, with the 
 exhibits and proofs taken and used at the hearing of this 
 cause in this court, saving to the parties just exceptions to 
 the said defendant's answer, so far as the same is not an 
 answer to the matters alleged in the said bill of complaint ; 
 and further, that the said parties respectively be allowed to
 
 STATE OF NEW-YORK. 69 
 
 offer any additional, or other evidence, which may be perti- ALBANY, 
 nent to the issue so to be tried." ^eb^isos.^ 
 
 From this order the complainant appealed, contending, Bush 
 that it ought either to have designated what specific parts Livingston and 
 of the bill, mortgages, &c. should be read in evidence, or ' 
 
 have left it at large to the supreme court, to determine 
 what should be so used ; because, from the manner in 
 which the order was expressed, it was referred to the su- 
 preme court to determine what should be deemed an alle- 
 gation in the bill. He also insisted, that whatever might 
 be the decision on this point, still, as the court now had 
 the *whole case before them, they would, of course, de- * 70 
 
 cree definitively on the matter, and that, therefore, he had 
 a right to suggest and insist on whatever might be deemed 
 material, to show that he was entitled to a decree of fore- 
 closure, which this court might pronounce, and remand 
 the cause to chancery, merely to carry such decree into 
 effect. 
 
 The respondents, on the other hand, urged, that the or- 
 der alone being appealed from, this tribunal had only to 
 decide, whether the Chancellor, on ordering a feigned 
 issue, has power to direct what proofs are to be offered ; 
 and, if he has, whether such power was, on the present 
 occasion, legally exercised ? 
 
 On the cause being brought on, the Chancellor thus as- 
 signed his reasons : 
 
 \ 
 
 Mr. President The bill in this case, afcer stating the 
 mortgage and assignment, and alleging that the latter was 
 for a full and valuable consideration to the appellant, con- 
 tained no particular interrogatories, but merely required 
 the respondents to make true, distinct and perfect answers, 
 upon their corporal oaths, to the matters and things in the 
 said bill set forth. The respondent Livingston stated the 
 assignment to have been made for a usurious considera- 
 tion. This appeared to me pertinent to, and a direct an- 
 swer to one of the objects of the general interrogatory.
 
 70 CASES IN KRKOR IN THE 
 
 ALBANY, This part of the answer cannot be reconciled to the testi- 
 
 ^^r. ^_ f mony of Mr. Evertson, and it was, therefore, a proper 
 
 Bush subject for an issue. 
 
 Vm 
 
 Livingston and That the bill might have been so drawn as to avoid this 
 
 Townsentl. i 111 i 
 
 . consequence, as was strongly urged, could not vary the re- 
 
 sult. The answer contained a precise negation of the al- 
 * 71 legation on the part of the appellant, *that the assignment 
 
 was made for a full and valuable consideration ; and, I 
 take it, I could not decree against this answer, on the tes- 
 timony of one witness contradicting it. I, therefore, di- 
 rected an issue, to try whether the assignment was a usu- 
 rious, or a bonajlde contract. 
 
 The certain effect of sending the matter to a jury, with- 
 out the answer, unless the allegation of the respondent 
 could be effectually supported aliunde, would be a verdict 
 disaffirming the answer. 
 
 But the intent of the issue is to refer to a jury, whether 
 the greatest degree of credibility is to be attached to the 
 answer, or to the deposition. If either party have any 
 auxiliary evidence, that may cause the one or the other to 
 preponderate j but to compare, they must, of course, be 
 contrasted and weighed. 
 
 The circumstances of the case, and the rule to be ob- 
 served, appear, to me, too clear to admit of doubt. 
 
 It was said, there was no general rule on the subject ; 
 but the rule is well established, that if a case be sent to a 
 jury, on the ground of the evidence being in equilibria, 
 the answer must be sent, as well as the evidence in the 
 cause. 
 
 Withdraw the answer, and the scale must, in a mo- 
 ment, kick the beam, for then, there is nothing to form an 
 equipoise. 
 
 But it was said, that the allegations of the defendant 
 were in avoidance, and so not evidence. This, I con- 
 ceive, has been already answered, and, therefore, it is not 
 necessary to repeat my former opinion.
 
 STATE OF NEW-YORK. 71 
 
 I, therefore, sent the answer to the jury, as part of the ALBANY, 
 
 .... . Feb. 1805. 
 
 matter on which they were to determine. v_, ' ^. ^_/ 
 
 Bush 
 
 V. 
 
 *Benson, for the appellant. The permission given to Livingston and 
 
 Towtiseud. 
 
 read the answer of Livingston, in evidence, on the point 
 
 in issue, that is, whether the contract were usurious or not, j^^'je, 40 ' \ 
 was improper; because, that part only of an answer can be ^ ^ * a 5 * 
 adduced in testimony, which is an answer to the allegations * 72 
 
 of the bill. Whatever goes in avoidance, even of that 
 which is admitted, must be proved. Gilb. L. Ev. 52. As, 
 therefore, the bill did not allege usury, but the defendant 
 insisted on it, in avoidance of the securities alleged to have 
 been entered into, the circumstances creating the usury, 
 could not legally derive any support from the answer. This 
 doctrine is sanctioned in Barn. Ch. Rep. 373.t where it is f Jiienv. Crab- 
 said that, on an injunction bill, " if a plain equity be set 
 forth by the bill, and admitted by the answer, but endea- 
 voured to be avoided by another fact, the injunction shall 
 always be continued till the hearing." The same principle 
 is to be found in 2 Eq. Ca. Abr. 247. It is no argument 
 against this, to urge, that the bill states the assignments to 
 have been made " for a full and valuable consideration." 
 They are words of course, the addition of counsel, and 
 mere surplusage ; for it was not necessary to do more than 
 state the execution of the deeds, and pray a foreclosure. 
 Besides, the expression itself is used with a reference to 
 the endorsements on the mortgages, and cannot, therefore, 
 be deemed a substantive allegation. We also contend, 
 that, in the present instance, the Chancellor had no right 
 to order an issue. This is a power to be exercised only in 
 cases of doubt, where the question is on the credibility of 
 witnesses, or on which side circumstances preponderate. 
 Here, there could be no hesitation. The answer of Living- 
 ston *was inadmissible on the point of usury, and Evert- * 73 
 son, his own witness, who cannot, therefore, be discredit- 
 ed by him, says, he knew not of any. But, admitting that 
 Livingston's answer is to be received as testimony ; it does 
 
 I i
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 not contain any fact amounting, in judgment of law, to 
 usury, so as to affect the securities in the hands of the ap- 
 Bush pellant. The statute against usury applies only to original 
 Livingston and contracts between borrower and lender, upon which securi- 
 Townsend. t j eg are g j ven . The maxim, therefore, is, once usury and 
 always usury ; but if not usury in its inception, it can never 
 become so afterwards. It follows, that subsequent dis- 
 counts or purchases at an under value, however uncon- 
 scientious, can never taint the original contract. But how- 
 ever this may be, as all the transactions relating both to the 
 original contract and the assignment, are fully before the 
 court, and as it is not pretended that any further light can 
 be thrown on the subject, the tribunal, before which the 
 cause is now brought, will decide on the whole case, with- 
 out referring it back to an examination, which will serve 
 only to bring it here again. In Le Clients case the same 
 thing was done, and it is no more than the ordinary course 
 of the court. 
 
 Riggs and Hoffman, contra. To determine whether the 
 answer of Livingston ought to have been ordered to be read 
 as evidence, it is only necessary to recur to the practice of 
 the court of chancery, and the circumstances of the case. 
 As to the first : whatever is stated in the bill must be an- 
 swered, though not interrogated to ; for were all the inter- 
 rogatories, which are usually annexed to a bill, totally 
 * 74 omitted, still every part must be answered ; because *what 
 
 it sets forth is deemed an allegation. Thus, a defendant is 
 under the necessity of answering, on oath, what is contain- 
 ed in the bill ; and the plaintiff has the advantage of purg- 
 ing the conscience of his adversary. But when he has 
 done this, he cannot take a part of the answer which suits 
 his purpose, and reject the residue, under a pretence, that 
 the matter in his bill to which it applies, was surplusage, 
 and needed not to have been answered. Here a considera- 
 tion was set forth, on which the assignment of the mort- 
 gages was made. The defendant Livingston, was there-
 
 STATE OF NEW-YORK. 
 
 fore called on, either to admit the consideration as stated, ALBANY, 
 
 show some other, or deny it altogether. He has shown it 
 
 to be usurious, and had the cause, with respect to him, 
 
 gone to trial on bill and answer, it would have been com- Livingston and 
 
 plete evidence. There was, however, a witness examined, ux>nsi ' nt ' 
 
 and as the Chancellor might apply for the assistance of a 
 jury, to aid his determination, it was indispensable to or- 
 der the answer to be read in evidence, for otherwise 
 there would have been nothing to oppose to, or explain the 
 testimony of Evertson, and the verdict must necessarily 
 have been according to his depositions. It was requisite 
 that Livingston's answer should be read in testimony on an- 
 other ground. The cause, as between Bush and TownsenJ, 
 went to trial on bill and answer ; all, therefore, that he 
 says, he believes to be true, and what he refers to himself, 
 must be received as truth. The answer of Livingston he 
 expressly mentions, adding, that he had been informed 
 and believed " the matters therein contained were true." 
 Besides, when Townsend was, by the supplemental bill, 
 made a party, Livingston became a substantial witness. 
 That the Chancellor can direct an issue only where the # 
 
 testimony ^clashes, is not correct. In 2 Fern. 554. \ the j ibbotson v. 
 answer of the defendant was directed to be read in evi- 
 dence, merely to enable to draw an inference. The truth 
 is, that, in most cases, it is discretionary in the Chancel- 
 lor, whether he will send the cause to a jury or not, and 
 that there is no settled practice on the subject, except 
 where an answer denies, what one witness affirms. Then, 
 indeed, an issue is ordered of course, because, on such oc- 
 casions, the rule is, that chancery cannot make a decree. 
 Lord Milton v. Edgwcrth and others, 6 Bro. Par. Ctu 58O. 
 Pember et Ux. v. Mathers, 1 Bro. Ch. Rep. 52. The prin- 
 ciples on which courts of equity proceed, when they order 
 an issue at law, are fully laid down by Lord Kenyan, in 7 
 D. & E. 667.J " Ifi" says he, " a court of equity direct an * Rauerman v. 
 
 . ...... .... I Lilian u;. 
 
 issue to be tried, it may modify it in any way it thinks 
 proper. One of the rules of courts of equity is, that they
 
 75 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Townsend. 
 
 * 76 
 
 cannot decree against ihe oath of the party himself, on the 
 evidence of one witness alone, without other circumstances ; 
 Bush but, when the point is doubtful, they send it to be tried at 
 Livingston and law, directing that the answer of the party shall be read on 
 the trial ; so they may order that a party shall not set up 
 a legal term on the trial, or that the plaintiff himself shall 
 be examined, and when the issue comes from a court of 
 equity with any of these directions, the courts of law com- 
 ply with the terms on which it is so directed to be tried." 
 As to matter of avoidance being to be proved, that we do 
 not deny. The nature, however, of an avoidance is to be 
 seen. It is something subsequent, and dehors that which is 
 admitted or alleged. As if a debt be acknowledged, but 
 it be added, " you released it," or, " I paid it ;" there the 
 release, or ^payment, being matter of avoidance, must be 
 proved. The answer is not by way of avoidance of that 
 which is admitted, but of showing it to be otherwise than 
 stated, and was, therefore, proper testimony. Not only 
 the answer, but the very bill may be ordered to be read in 
 evidence. 1 Morg. Ess. 111. 1 Ch. Ca. 65. f The Chan- 
 cellor, therefore, had the power to order the issue direct- 
 ed, modifying, as he pleased, the evidence to be used, 
 and, though the reading the answer is confined to the alle- 
 gations of the bill, that part relating to the consideration of 
 the assignment was proper, because it was alleged to have 
 been bonajide. The circumstances of this case render it 
 peculiarly a matter for jury reference. Bush is stated to 
 have paid but 5,600 dollars to Evertson, and the considera- 
 tion mentioned, in the assignment itself, is 6,OOO dollars. 
 It ought, therefore, to have been left to a verdict of twelve 
 men to ascertain whether the extra 4OO dollars was not a 
 usurious forbearance for 90 days. That it was so, seems 
 almost confessed. Bush sets forth, that Livingston applied 
 to him to borrow money ; Livingston admits it to be a loan, 
 and Evertson asserts, that he thought the 5,600 dollars 
 were lent by the appellant. When all parties thus call the 
 transaction a loan, it cannot be pretended it was a pur- 
 
 t Woollet v. 
 ftoberts.
 
 STATE OF NEW-YORK. 76 
 
 chase. It is said, however, if the primitive contract was ALBANY, 
 
 ... . rp Feb. 1805. 
 
 not usurious, no subsequent matter will make it so. J ue, ^^^^x 
 as between the original parties. But what is the contract Bush 
 
 here ? 1 he mortgages ? No. The debt created between Livingston and 
 Livingston and Bush to pay off those mortgages, and for 
 which the assignment was to be the security. Bush takes 
 the mortgages, not on the original valid consideration, but 
 on *one that was foreign to them, new, and tainted. It 
 is strange that the securities shall stand good for a consi- 
 deration, which, if they did not exist, would be illegal. It 
 has been ruled, that the security was void, though the debt 
 remained, but never till now argued that the debt was void 
 and the security good. This would be an easy mode of 
 slipping through and evading the statute. Wherever there 
 is a borrowing and lending, it is within the act, and it is 
 not in the wit of man to frame a contrivance to take the 
 transaction out of its operation. Cowp. 115.f 776.J Doug. fF%er v. fd- 
 740.6 In Bac. Abr. 419. old ed. pi. 6. there is a case which t j esto m v. 
 
 * 11 Brooks. 
 
 shows that usury may take place upon a security originally Lov>e v Wal . 
 good, and be insisted upon, between the parties them- L 
 selves.1[ The endorsor of a note for 20O pounds, which 
 had three months to run, passed it to the plaintiff, for the l 
 consideration of 197 pounds ; at the end of that time, an- 
 other note at three months, for 20O pounds was given, and 
 three pounds more paid. It was by Lee, Ch. J. referred 
 to a jury, to determine whether the transaction was a loan 
 or a purchase ; they determined it to be the former, and it 
 was held usury. This authority does away all idea of a 
 purchase, and establishes, that a new security for a debt 
 originally legal, if compounded with a usurious receipt of 
 interest, is bad for the whole, as against the borrower. 
 But though the subject of usury or not, has been entered 
 into, this court can pronounce only on that which is ap- 
 pealed from ; the order and ks contents. 
 
 Hanson and Benson, in reply. We do not deny the 
 power of a court of equity to send a case to a jury. But
 
 CASES IN ERROR IN THE 
 
 ALBANY, it is not an ad libitum power, and, when exercised, must be 
 
 for the determination of a fact, not a matter of law. Here 
 
 ^ 
 
 Bush the simple question was, whether, on *the circumstances 
 Livingston and detailed, the transaction were usurious or not. This be- 
 se " d ' ing an inference of law, ought to have been made by the 
 * 78 Chancellor. He could not contemplate the addition of 
 
 Livingstons testimony as a witness, because, to render it 
 admissible, he must have released the surplus of his estate, 
 and the contingency of such an event was, in itself, suffi- 
 cient to prevent any measure being taken upon the expecta- 
 tion of it. Besides, the issue is, in fact, to try whether 
 the defendant, or his own witness, is to be believed. There 
 is no instance of such an order. Allowing, however, that 
 it was correct to send this cause to a jury, that could not 
 be directed to be used as evidence before them, which was 
 not so in chancery. The answer would not, even there, 
 have been testimony to establish the usury ; for, as contain- 
 ing new matter, in avoidance, it must have been proved by 
 something extrinsic. For, what avoids, needs not be sub- 
 sequent. Any circumstance which destroys the otherwise 
 legal consequence of a thing, whether it be contempora- 
 neous, concurrent, or subsequent, is matter of avoidance. 
 Thus, infancy and usury are avoidances, but the former is 
 not a subsequent matter, and the latter takes place in the 
 formation of the contract it avoids, at the very time it is 
 created ; yet each, if relied on, must be proved. On this 
 point, the rule in equity is the same as at law. In both, 
 the defence must be strictly made out by evidence. This 
 principle is found in Tatev. Wellins, 3 D. & E. 531. Be- 
 cause, as is laid down in 5 Bac. Abr. old ed. 420. pi. 7, " a 
 court will not easily avoid a bond, and the corrupt agree- 
 ment ought to be specially and particularly set forth, and 
 the quantum of interest, otherwise the plaintiff can never 
 tell what to answer." It *is not possible to vacate the 
 securities in the hands of the appellant, on the score of 
 usury unless it be shown to have existed in the original 
 transaction between Livingston and Evertson, for it is in 
 
 4
 
 STATE OF NEW- YORK. 79 
 
 right of the latter that Bush now claims. He can recover ALBANY, 
 
 f ... i_ j _<!. F eb. 1805. 
 
 from Livingston no more than is due in virtue of the prirm- t _^ ./-yj 1 
 
 live contract, which cannot be impeached by an ex post facto Bush 
 
 agreement be tween Livingston and the assignee of Evertson. Livingston ana 
 
 Neither in law nor in equity, is the plea of usury a favour- Ovvnsen ' 
 
 ite. By each tribunal the money actually paid is deemed 
 in conscience due, and endeavours are invariably made by 
 both, to give back the principal and legal interest, though 
 they may deny the surplus or excess. In a case in 4 D. & 
 .f it was una voce laid down, that if an instrument can, j- L* Grange \. 
 
 by any reasonable construction, be considered not usurious, 
 the court was bound to do so. As, therefore, in this case, 
 the whole merits are before the court, and the securities 
 held by the appellant were given on a bona Jide considera- 
 tion, we ask for a final decree. 
 
 Per Curiam, delivered by SPENCER, J. The appellant's 
 counsel have insisted on the argument, 
 
 1st. That so much of Livingston's answer as charges the 
 appellant with usury, is not evidence, and is to be proved 
 aliunde. 
 
 2d. That the order of the Chancellor, in leaving at 
 large, what part of the answer was to be read, is therein 
 erroneous. 
 
 3d. That if Livingston's answer is to be received as evi- 
 dence, in totOy the charge of usury is not, in law, esta- 
 blished. 
 
 4th. That an issue ought not to have been directed, in con- 
 sequence of contradictions between Livingston and his own 
 witness, Evertson. 
 
 *5th. That the whole merits pf the case being before 
 this court, it will decide thereon definitively, and remit the 
 cause to be carried into execution. 
 
 The counsel for the respondents have combated these 
 propositions, and insisted, 
 
 1st. That, independent of Livingston^ answer, the fact 
 of usury is made out.
 
 80 CASES IN ERROR IN THE 
 
 ALBANY 2 ^* Th at fr m tne state f proceedings, in relation to 
 
 Feb. 1805. Townsend, the charge of usury is established. 
 
 3d. That from Livingston's bankruptcy he can now be 
 v - rendered a competent witness, and, therefore, an issue 
 
 Livingston and 
 
 Townsend. ought to be directed. 
 
 In investigating this cause, several of the points raised 
 will not be examined, as a decision on them would be su- 
 perfluous, from the view I have taken of the subject. It 
 appears to me, from the authorities I have consulted, that, 
 admitting Livingston's answer in relation to the usury to be 
 evidence, and to stand uncontradicted, I still must main- 
 tain, that there existed no usury as applicable to the bonds 
 and mortgages assigned to the appellant ; and that, whether 
 the answer is or is not evidence, still, that with respect to 
 the excess of the 5,60O dollars paid by the appellant to 
 Evertson, the testimony of the latter, and the admissions 
 in the bill, show that the appellant cannot recover it. 
 
 I now proceed to examine whether the transactions stated 
 in Livingston's answer, will, under the notion of usury, de- 
 prive the appellant of his right to hold the mortgages as- 
 signed to him as a security for 5,60O dollars, and the legal 
 interest which has since accrued thereon. In the research 
 I have made, I have met with no authority, or even dictum, 
 that a security for the payment of money, in its inception 
 * 81 uncontaminated *with usury, can, by an ex post facto agree- 
 
 ment for a receipt of a greater sum than the statute allows 
 for forbearance, be rendered usurious. In the case read 
 by the respondents' counsel, from 5 Bac. Abr. 419. />/ 6. 
 there was a renewed obligation, in which the usury and the 
 bonafide debt were consolidated, and there it was held to 
 be usurious. But this case is not law, as will, I think, be 
 hereafter shown. 
 
 The first essential to usury is, that there be a loan. 
 Hawkins, in vol. 2. 373. sec. 1. says, "that it is a contract, 
 on the loan of money, to give the lender a certain profit 
 for the use of it upon all events, whether the borrower 
 make any advantage of it or not, or the lender suffer any
 
 STATE OF NEW-YORK. 81 
 
 prejudice." It is true, that it may take place in relation to ALB ANY, 
 the rent of lands, or the sale of goods, but, as applicable y s- N ^ fc ^ 
 to this case, an inquiry into usury of that kind cannot be B " sh 
 
 nvpRsarv Livingston and 
 
 Townseiwl. 
 
 It is true, that the appellant, Livingston, and the wit- _ 
 
 ness, Evertson, speak of the money paid by the former 
 to the latter, as a loan from Bush to Livingston. The 
 transaction, however, must decide that point, and not the 
 expressions and language of the parties. Bush says, that 
 Evertson having demanded payment of his debt, Living- 
 ston applied to him, and requested him to lend him a sum 
 sufficient for that purpose, and offered to secure the re- 
 payment thereof, by procuring an assignment from Bush 
 to Evertson; and that, accordingly, on the 22d of July, 
 1799, the assignments were made in due form of law. 
 Livingston states, that, being urged by his necessities, he 
 applied to Bush to borrow a sum of money to pay off the 
 bonds and mortgages, and that Bush taking advantage of 
 his necessities, offered to loan him 5,600 dollars for ninety 
 days, if he would allow him for the ^forbearance 400 
 dollars, to which he consented. That it was then agreed 
 between Bush, Evertson and himself, that Bunh should 
 pay Evertson 5,600 dollars towards satisfying him for the 
 amount due on the bonds and mortgages, and that Living- 
 ston should secure to Evertson what should remain due for 
 principal and interest, Evertson assigning to B;i.-;h, to se- 
 cure him the repayment of the 5,60O dollars, and also the 
 400 dollars, in pursuance of which agreement, the bonds 
 and mortgages were assigned. Evertson deposes that he 
 understood and believed the 5,600 dollars paid him by 
 Bush was a loan from Bush to Livingston, and his reason 
 for so believing was, that the money was paid at the re- 
 quest of Livingston for his sole benefit. The transaction 
 between Bush and Livingston was substantially this : Bush, 
 to gain 400 dollars for ninety days forbearing of 5,6oO 
 - dollars, advanced the latter sum to Evertson for Living* 
 
 Kk
 
 12 CASES IN ERROR IN THE 
 
 ALBANY, ston, upon good and valid securities, and took the assign- 
 ments as for 6,000 dollars. 
 
 As between Evertson and Bush, there can be no question, 
 
 Livingston and that the latter became invested with all the right of the 
 ' nu ' sem ' former to the sum then actually due on the bonds and 
 mortgages. In fact, this payment was not a loan to Living' 
 ston, because Bush paid it to Evertson, as the consi- 
 deration of his assignment. If Evertson himself, without 
 the intervention of Bush, had exacted 400 dollars, or any 
 other sum, from Livingston, for forbearance tor a limited 
 period, such exaction, however usurious, would not invali- 
 date the bona fide securities. In the case of Pollard v. 
 Schohj, C'ro. Eliz. 20. Pollard sold to Scholy two oxen for 
 6/. 6*. 3d. payable at All Saints next ; on the same day 
 Scholy required a longer time ; Pollard gave him to the 
 first of May, paying him for forbearance, three quarters 
 
 * 83 #of wheat, which amounted to more than the legal inte- 
 
 rest. In debt for the 6/. 6*. 8<Y. the defendant pleaded this 
 in avoidance of the contract. The opinion of the justices 
 was, " that the statute does nqt make the contract void 
 which was duly made, but doth only avoid all contracts 
 for usury, and this last contract is void, being against the 
 
 | See Turner v. statute, but the first was good being made bona fide.^ In 
 
 Jfiihne, 4 Esp. r i 11 
 
 Jtep. 11. a note 2 Hawk. 377. sect. 17. is his case : " A. was fairly indebt- 
 
 ed to B. in 1,1 25/. and on A. desiring time to pay it, B. in- 
 IrresTon Turn- sisted that 150/. should be added to the debt, as he would 
 S*tte2^nt have nothing to do with interest. Accordingly, A. gave 
 of the very usu- him five acceptances for these two sums, payable within 
 
 rions note, can- 
 
 not he impeach- fourteen months, and it was held, that the bona jide debt 
 
 ed for the usury 
 
 of the first note, subsisted, unimpeachecl by the subsequent usurious transac- 
 per e s on joinfin tion."J A reference to the reporter, from whom the ante- 
 '? GmJv d K cedent decision is taken, fully justifies the summary of the 
 IM '/ 'c ilach ' case in Hawkins. The same principle is recognised in 1 
 
 fhe qwcn v. jy j m 119- ^ sir T. Rau. 196-lf 4 Burr. 2253-tt and m 
 Seweu. ,., ,t i -r 
 
 ^ Hex v. Allen. Vin. Abr. tit. Usury, H. pi. 6. it is laid down, that it 
 
 ft .Ibrahams v. \ n i i 
 
 Siunn. the first contract is not usurious, it shall never be made so 
 
 by matter ex post facto." The case of Ferral v. Shaen, 1
 
 STATE OF NE W.YORK. 83 
 
 Saund. 294. is also to the same effect, that a bond, which ALBANY, 
 was good when made, is not avoided bv a subsequent usu- ^ -^_; 
 rious contract, for delaying the day of payment. Bllsl> 
 
 All these authorities proceed on the wording of the sta- Livingston anj 
 
 Towriscnd. 
 
 tutes against usury. I hey forbid the taking more than the - 
 
 rate of interest prescribed, and declare all assurances, &c. 
 whereby more shall be reserved, or tnken, to be void. 
 Now if, in this case, the bonds and mortgages in their cre- 
 ation were valid, if no more interest was reserved than 
 the law allowed, how can *they, conformably to this sta- *" 84 
 
 tute, and the universally concurring expositions of it, be- 
 come void ? If the mortgages and bonds cannot be affect- 
 ed by the charge of usury, much less can the assignment, 
 for the reason, that this is an act between Evertson and 
 Bush. Evertson was capable of parting with his interest 
 in these securities, and Bush of taking it. Evertson has 
 assigned, for an adequate consideration, all his right to the 
 bonds and mortgages, and this cannot be impeached on 
 the pretence of usury between Bush and Livingston ; be- 
 cause, as Livingston is not a party to the assignment, he 
 cannot complain that it is an assurance by which he is 
 bound to pay more than the sum then due on the mortga- 
 ges. 
 
 I think the appellant not entitled to recover more than 
 the 5,600 dollars, and the interest, on two principles, in- 
 dependently of Livingstones answer. 1st. When Evertson 
 made the assignment, Livingston, as is proved by Evert- 
 son, gave him two promissory notes for the balance be- 
 yond the 5,6OO dollars paid him by Bush. These not e $ 
 were accepted by him as a payment of so much, towards 
 the mortgages and his account, and have since been actual- 
 ly paid in full. The assignee of all choscs in action, except- 
 ing bills of exchange and notes, takes them subject to all 
 the equities between the original parties. Bush, therefore, 
 though assignee, nominally, for 6,OOO dollars, can exact no 
 mone than Evertson could, and clearly, by transactions 
 between Evertson and Livingston, before or at the time of
 
 84 CASES IN ERROR IN THE 
 
 ALBANY, assignment, no more, as between them, than 5,60O doi- 
 lars could be collected on the bonds and mortgages. But, 
 
 2dly. From the appellant's state of his own case, in connec- 
 ivingston and ^ on with the testimony of Evertson, it appears, evidently, 
 that the *appellant availed himself of the necessities of 
 
 g~ Livingston to obtain more than legal interest; and to use 
 
 the expressions of Lord Mansfield, " though the transaction 
 itself may not amount to usury, yet it was taking a hard 
 and unconscionable advantage." In the case of Flayer v. 
 Edwards, Cow p. 116. it was held that money, thus claim- 
 ed, should not be recovered in an action for money had 
 and received. In a court of equity, whose peculiar juris- 
 diction it is to relieve in cases of fraud, and whose maxim 
 it is, that he who would have equity, must do equity, I 
 think there can be no doubt, that apart from the considera- 
 tion of usury, the appellant ought not to recover beyond 
 the 5,600 dollars and the interest. To thisl conceive him 
 well entitled. The principles I have advanced, and the 
 conclusions I have drawn, lead to the most equitable and 
 righteous result. The appellant obtains the money really 
 advanced, with interest, and the respondent is relieved 
 from the advantages attempted to be taken of his distresses 
 by the appellant. 
 
 It will be observed, that I have abstained from any in- 
 quiry into the correctness of the Chancellor's order in point 
 of form ; because, in my opinion, the issue, if correct in 
 form, would have been upon a point wholly immaterial. 
 The respondents could never have made out more than 
 Livingston alleges, and on his allegations, taking them for 
 true, my opinion has proceeded, so far as respects the ques- 
 tion of usury. 
 
 There remains only one point to be considered; that is, 
 whether this court will finally decide the cause? In the 
 * 86 case of Gouverneur fc? Kemble v. *Le Guen, this court, on 
 
 an appeal from the order of the Chancellor, directing an 
 issue, finally decided the cause, and directed the complain- 
 ant's bill to be dismissed. It did so on precedents from
 
 STATE OF NEW- YORK. 86 
 
 the proceedings of the House of Lords, in England, on ALTC \\Y, 
 appeals from chancery, and because the whole merits of the 
 case were before the court. When it is considered that 
 
 . 
 
 there can be no further proofs in the cause, that the whole Livingston and 
 
 .. Townsenil. 
 
 merits have been discussed and reviewed, that it will save , 
 
 litigation and expense, I am myself contented to be bound 
 by the precedent which has been made. In rny opinion, the 
 order appealed from ought to be reversed, and an order en- 
 tered, that the Chancellor decree the respondents to pay the 
 appellant, by a time to be limited, 5,60O dollars, with inte- 
 rest, from the 22d of July, 1799, with costs, in the couit 
 below to be taxed, or that the respondents be foreclosed 
 their eauity of redemption. 
 
 Judgment of reversal accordingly. 
 
 Hallett and Bowne against Jenks, 
 
 > ruled, that a caus 
 ing, till cases are delivered. 
 
 IT was ruled, that a cause cannot be set down for hear- Setting 
 
 causes for hear- 
 
 *Amos Wetmore, Appellant, * * r 
 
 against 
 Hugh White, and Hugh White, junior, Respondents. 
 
 THE appellant being seised of 250 acres of land, on By a sale of 
 
 f i r. i i r//i + mills, the water 
 
 the east side of the Saghquate creek, in Whitestown, to- of t) ,' e ,. !iceway . 
 
 will pass as au 
 
 incident. If the water in a stream be owned by two persons, whose lands are on opposite sides, 
 and they Mree to erect mills on the land of one, and turn the whole stream lo the mills; it 
 is an appropriation (>f the water to the mills, and if they be held jointly, or in common, a 
 release of the right of one tenant in the mills, will pass his rijjht in the water also. Payment 
 of consideration money, possession and making improvement*, take a case out of the statute 
 of frauds, and will entitle to it. decree, for a specific performance.
 
 S7 CASES IN ERROR IN THE 
 
 ALBANY, gether with a moiety of the soil under water, and the rb. 
 '", spondent, Hugh White, the father, being seised of 300 
 Wetmore acres on the west side, with the other moiety of the bed 
 Whitp *,- White. f tne creek, entered in the year 1787, into a verbal en- 
 gagement, to divert on their joint account, for the use and 
 
 purpose of mills to be erected, the water of the stream to 
 such spot in the grounds of either, as should, in the opi- 
 nion of one John Beardsley, be most proper for the site of 
 a mill. In pursuance of this agreement, Beardsley examin- 
 ed the grounds on both sides of the creek, and fixed upon 
 a place on the lands of the appellant. Having thus ascer- 
 tained where the erection should be made, Wetmore, White, 
 senior, and Beardsley, on the 13th of May, 1788, executed 
 awrittenagreement, to build a grist-mill, on Wetmore's land, 
 a few rods north of his house; he and White to "ozvn" 
 each one-fourth of the mill, in consideration of furnishing all 
 materials, &c. and constructing the dam to turn the water of 
 the creek ; Beardsley to " own" the other two-fourths, on do- 
 ing the carpenter's work, See. Upon these terms the mill and 
 dam, being in the course of the year 1788, completed, it was, 
 about the time when they were finished, verbally agreed be- 
 tween the same parties, to build, adjoining to the grist mill, 
 a saw-mill, to be supplied with water in the same manner, and 
 to be " owned" in equal proportions by the three. This also 
 being carried into effect, the mills were used and *enjoyed 
 according to the preceding agreements, for about three years ; 
 when being very much out of repair, Beardsley, in 1791, in 
 consideration of 600 dollars, by release, duly transferred his 
 interest in them, to the appellant, who, under a parol con- 
 tract, when they were totally unfit for use, shortly after 
 purchased from Hugh White, the father, his proportibns, 
 for 187 dollars, and paid the money, but received no con- 
 veyance of the shares White held in the property, nor was 
 any thing said of the right to the water of the creek 
 
 On concluding the anteced nt transactions, the appellant 
 took down the saw-mill, which had become pei/e ly use- 
 less, and rebuilt it entirely. He also, after thoroughly 
 
 4
 
 STATE OF NEW-YORK. 88 
 
 repairing the grist-mill, added a pair of new mill-stones, ALBANY, 
 
 ' , . , , . r , f Feb. 1805. 
 
 and peaceablyenjoyeu both mills tor the space oi one year, v ^^ *^J 
 when the)' were accidentally burnt down. Wetmorc 
 
 Immediately after their being thus destroyed, the ap- White & White, 
 pellant, at a very great expense, and without any opposi- 
 tion or molestation from the respondents, rebuilt the mills, 
 and continued in the use and occupation of them, and the 
 uninterruped enjoyment of the water of the creek, until Au- 
 gust, 1797, when the respondent, Hugh White, the father, 
 threatened that he would cut down the dam, and deprive the 
 appellant of the use of the water, unless he would become 
 a Presbyterian, and join the congregation under the charge 
 of the reverend Bethuel Dodd, and would also build a dam 
 and turn one half of the water of the creek over a mea- 
 dow contiguous to the Saghquate, and adjoining to the dam 
 erected for the use of the mills ; which meadow, on the 
 25th of April, 1 794, the respondent, Hugh White, had, in # gg 
 
 consideration of blood *and natural affection, conveyed, 
 with a moiety of the waters of the creek, to his son, Hugh 
 White, junior, the other respondent. 
 
 In September and October, 1797, the dam across the 
 creek was, to the great injury of the mills, at three several 
 times cut through, and the water permitted to escape. 
 
 On the 5th December, 1797, the appellant filed a bill in 
 chancery, stating the antecedent circumstances, with a 
 prayer for a writ of injunction, to restrain the respondents 
 from molesting or disturbing him in the enjoyment of the 
 mills, mill dam, and the water of the Saghquate creek ; that 
 he might be quieted in his possession of them, and for such 
 further, and other relief, as the court might please to di- 
 rect. 
 
 To this bill, the respondents, on the 3d of August, 1798, 
 put in their joint and several answers, in which they ad- 
 mitted the situation of the lands of the appellant, and re- 
 spondent, Hugh White, the father; the parol engagement 
 to erect the mill-dam and mills ; the u ritten engagement ; 
 the sale by White, of his shares in the milLi ; the payment 
 o the consideration money j that there was a preliminary
 
 89 CASES IN ERROR IN THE 
 
 ALBANY, conversation between him and the appellant, about securing, 
 
 Feb. 1805. 
 
 v_ jr _ -x_' in some proper manner, the water or the creek lor the 
 Wetmore mills when erected ; and a continued necessity, for several 
 
 White & White, years after the sale to the appellant, of the mills, for the 
 accommodation of the public : that they were burnt down 
 and rebuilt, &c. but the answer denied that the right or 
 privilege in the waters of the creek, had ever been parted 
 with to the appellant, or that he had paid any consideration 
 for it ; or, that he had any right to appropriate the waters 
 of the creek to the use of the mills ; or to maintain the 
 dam for turning the water from its usual course. The an- 
 
 * 98 swer *also set forth, that 202 dollars and 40 cents, had, 
 
 besides some other contingent charges, been paid by White, 
 the father, as his proportion of the expenses for building 
 the mills, and that he had sold his interest in them, for only 
 182 dollars 50 cents, at a time when they were in such re- 
 pair, and in which they continued for a considerable time 
 afterwards, as to be able to do business as well as at any 
 time since their erection. That soon after their destruc- 
 tion, White, the father, as he believed, in a conversation 
 with the appellant, explained to him the nature of the con- 
 tract for the sale of the mills, and then utterly denied the 
 appellant's right to the water ; that the appellant had never 
 requested a conveyance of the right of water, and had, 
 from a consciousness of his having none, erected at his own 
 expense, a temporary dam, below that for the use of the 
 mills, in order to turn the water inco the respondents' mea- 
 dow, the want of which, in consequence of the upper dam, 
 annually injured the crop of hay, and could not be com- 
 pensated for, by even 1,500 dollars; they also insisted on 
 the statute of frauds. 
 
 The testimony, the essence of which is given in the de- 
 cision of the court, in general corroborated the facts in the 
 bill, and from that given by two of the witnesses, it ap- 
 peared, that the understanding of the parties at the time of 
 the first parol agreement was, wherever the mills were 
 built, " there the waters -were to go" That Beardnley con-
 
 STATE OF NEW- YORK, 
 
 90 
 
 sidered the right to the water, as perpetually annexed to 
 the mills, and never entertained any apprehension of its be- 
 ing liable to be taken away. 
 
 The cause having been heard, his honour the Chancellor, 
 dismissed the appellant's bill with costs, from which de- 
 cree he now appealed, and his honour thus assigned his 
 reasons : 
 
 *Mr. President The appellant deduces his equity from 
 two sources : 1st. A parol contract relating to the saw-mill ; 
 and, 2d. A written contract relating to the grist-mill. 
 
 It is necessary, in the first place, to determine the ex- 
 tent of the parol contract, as arising from the admissions 
 and proofs of the parties. 
 
 From the terms of the bill, it would appear, that the ap- 
 pellant intended to avail himself of both the written and 
 parol contracts, as forming one general connected arrange- 
 ment of the whole interests, in the subject of controversy. 
 
 It states, that it rvas agreed between the appellant John 
 Beardsley and Hugh White, senior, to complete a grist and 
 saw-mill, for their joint use, and at their joint expense, on 
 the land of the appellant. That John Beardsley was to 
 have one-half of the grist-mill, and the other parties, each 
 one-fourth ; and that each of the parties was to have one- 
 third of the saw-mill, each contributing a proportional share 
 of the expense. That Beardsley should allow, to the ap- 
 pellant, a reasonable compensation for his land, and a like 
 compensation to the respondent Hugh White, senior, and 
 the appellant, for the use of the -water. 
 
 The respondents admitted, that it was agreed to build 
 the mills, and that the interests were to be in the propor- 
 tions stated in the bill. But they deny that any contract 
 was entered into respecting the water, or that Bedrdsley 
 had a right in it, or paid for it. 
 
 The only witness who has any knowledge of the parol 
 contract between the parties, is Beardsley ; and, if his testi- 
 mony is in direct opposition to that *part of^ the respond- 
 
 J.l 
 
 ALHAXY, 
 
 Feb. 1805. 
 
 Wetmore 
 
 * 92
 
 92 CASES IN ERROR IN THE 
 
 ALBANY, cuts' answer, which he was required to make, by the 
 
 %_JL' ^y terms of the bill, it might neutralize the answer, but can 
 
 Wetmorc have no effect beyond that, unless aided by other evidence 
 
 White & White, or circumstances. But all the circumstances developed, 
 
 tend to corroborate the answer. 
 
 Beardsleifs testimony is very indistinct, from a want of 
 discrimination, as to the object to which it applies. He 
 confounds the grist and saw-mills ; the parol and written 
 agreements ; and I found it impracticable, from his rela- 
 tion, to distinguish satisfactorily, what part was intended 
 to apply to the written, and what to the parol contract. 
 The same confusion is discernible as to time ; and, whe- 
 ther he speaks of contemporaneous transactions, or those 
 which took place at different periods, cannot be discover- 
 ed. 
 
 Mills are generally calculated for duration. But those 
 constructed by the parties were so slight, that the appel- 
 lant alleges, that, at the time he purchased of Beardsley, 
 which, it appears, was in October , 1790, and probably, not 
 more than two years after they were finished, (for the con- 
 tract for this erection was not made till May, 1788,) they 
 were already out of repair, and in a ruinous state at the 
 time the respondent Hugh White, senior, sold his interest 
 in them, which it appears was early in 1791. 
 
 From the permanency of the object of association, on 
 which much reliance was placed by the appellant's counsel, 
 no important result can, therefore, be deduced, in favour 
 of the construction they contend for. 
 
 * Another circumstance, which throws some light on the 
 subject in controversy, is, the different mode of conduct 
 observed between the appellant and Btardsley, relating to 
 the common interest, as far as respected that portion which 
 the appellant contributed towards the common undertaking, 
 and that which related to the property of Hugh White, the 
 father. 
 
 On the 18th of March, 1789, the appellant executed to 
 Beardsley, an indenture for the undivided half of his land.
 
 STATE OF NEW-YORK. 
 
 S3 
 
 intended for the accommodation of the mills, with express 
 covenants for the diversion of the water in his own land, 
 for there is nothing in the conveyance, indicating the claim 
 of right to dispose of a privilege of that nature, in the 
 land of the respondent, Hugh White, the elder ; and on 
 the 9th of October , 1790, Beardsley, by endorsement on 
 that conveyance, regrants the premises to the appellant. 
 This endorsement is confined to the subject of the former 
 grant merely, and is evidently calculated only to revest 
 the title derived under the conveyance. 
 
 There is no evidence of any application for a similar 
 grant to the respondent, Hugh White, the father, and though 
 the relationship, which existed between him and the appel- 
 lant, has been urged as a reason for inducing an unusual 
 confidence between the respondent, Hugh White, senior, 
 and the appellant, that consideration would not apply to 
 Beardsley, who, in his deposition, alleges, that he suppo- 
 sed the appellant " trusted to the honour and integrity of 
 the defendant, Hugh White, senior, and considered the pa- 
 rol agreement as abundantly sufficient." He was, how- 
 ever, more interested in the arrangement than ^either of. 
 the other parties, and he gives no reason for his own con- 
 duct. 
 
 Both the appellant, and Beardsley, appear to have been, 
 fully apprized of the necessity of securing their reciprocal 
 rights by conveyance ; and, that it was resorted to in one 
 instance, and unattended to in another, is a circumstance, 
 which, unexplained as it is, has a strong appearance ot a 
 mutual reliance, on the advantages each possessed, to ap- 
 ply them to, or withhold them from, the common object of 
 pursuit. The one party owned the land, on which the 
 mills were erected ; the other, so much of the water, as 
 contributed essentially to the value of the mills, though 
 not so much of it, as by withdrawing the water, to render 
 the mills totally useless. 
 
 Upon the whole, I do not think a parol agreement \s> 
 made out in proof, admitting the evidence to be compe- 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Wetmore 
 
 #94
 
 CASES IN ERROR IN THE 
 
 tcnt t0 sustam it* variant from, or enlarging the written 
 contract and the parol contract, admitted by the answer, 
 Wetmore relating to the saw-mills. It is, therefore, unnecessary to 
 White k White, examine the influence of the statute of frauds and perju- 
 ries on the case. 
 
 2d. As to the written contract. 
 
 This has no words evincive of the intent of the parties 1 
 to perpetuate this joint interest, beyond the duration of 
 the mill, which was the object of it. It recognises the 
 land, on which it was to be built, as the land of the appel- 
 lant, divides the contracting parties, by describing the ap- 
 pellant and the respondent, Hugh White, senior, as of 
 the one part, and Beardsley of the other part, and thus, 
 by opposing the interest of the latter, to that of the former, 
 shows, that so far as respected the grist-mill, the most in- 
 timate union of interest ^existed between the appellant and 
 the respondent, Hugh White, the father ; and that the con- 
 fidence which they had in each other could have no influ- 
 ence on Beardsley. 
 
 The mills erected in consequence of the written agree- 
 ment, were destroyed by fire ; and Hugh White, senior, 
 declares in his answer, that he informed the appellant, be- 
 fore he rebuilt them, that the water was his ; and that he 
 had not sold it. This is an answer to the matter stated 
 in the bill, to which he was interrogated, and of conse- 
 quence available to him, to rebut the deductions, which 
 might be otherwise made, from his tacit acquiescence in re- 
 building the mills. 
 
 The subsequent conduct of both the appellant, and the 
 respondent, Hugh White, senior, is an exposition of this 
 intent ; for upon the purchase of White's share in the mills, 
 by the appellant, instead of procuring a conveyance from 
 While, for the rights necessary for his own accommodation, 
 he is content with a mere verbal relinquishment of the 
 share held by White, the father, in the mills. This is per- 
 fectly consistent with the views of the parties, if the con- 
 tract was to operate merely to extinguish the rights acqui*
 
 STATE OF NEW-YORK. 95 
 
 red by the contract, by the respondent. White, senior, in ALBANY, 
 
 J . Feb. 1805. 
 
 the land of the appellant. But if the appellant's object '^^-y^-^^ 
 were to acquire or perpetuate privileges in the land of the 
 respondent, White, the father, the grant by him executed to White k White. 
 Beardsley, and by Beardsley to him, shows that he must have 
 been acquainted with the proper mode of securing it. 
 
 I am persuaded, from the whole tenor of the transaction, 
 that the parties, at the time of the contract, contemplated 
 only a temporary establishment and ^accommodation, to ' 96 
 
 remove the inconvenience to> which their remoteness from 
 mills exposed them ; that the conveyance from the appel- 
 lant to Beardsley, cannot be admitted to aid the construc- 
 tion of the contract between the parties to it, as it does 
 not appear that the respondent, Hugh White, the father, 
 had any agency in, or was privy to it ; and, that the bet- 
 ter construction is, that the reciprocal interests of the par- 
 ties were to be affected merely, while the principal objects 
 of their enterprise, the mills, endured; that those destroyed, 
 h ceased to operate. 
 
 I was of opinion, therefore, that the appellant's bill 
 ought to be dismissed with costs. 
 
 Platt, for the appellant. The equity of the appellant 
 does not arise, entirely from the written and subsequent pa- 
 rol agreement, but also from the original parol contract for 
 the erection of the mills, and appropriation of the water. 
 That there was such an antecedent contract, serving as a 
 substratum for the whole, and influencing the future acts of 
 the parties, is proved not only by the testimony, but by the 
 answers of the respondents ; and, though Beardsley be one 
 of the witnesses whose evidence shows this, yet no objec- 
 tion can be made to his competence, for they have made 
 him their own. Besides, his assignment was a mere quit- 
 claim. 
 
 These parol agreements having been in part executed, 
 are uniformly held to be without the operation of the sta-
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Wetmorc 
 White it' White. 
 
 I Pyke v. Wil- 
 liams 
 
 ^ Whitbread \. 
 JBrookhurst. 
 Earl of Jlyks- 
 ford's case, 
 "fl Only v. Wal- 
 ker. 
 
 ft Newton v. 
 Jrewtoa & Lee. 
 * 97 
 
 W Halfpenny v. 
 Balk't. 
 
 Pomfrct v. 
 Ricroft. 
 
 1ft[ Dmoman's 
 
 case. 
 
 s * Browning v. 
 
 Beston. 
 
 *{- Throckmor- 
 
 tonv. Tract;. 
 
 ** #/w v. 
 
 Grange, 
 
 * Chapman v. 
 
 .f)alton. 
 
 Mansell. 
 
 **f Dafforne v. 
 
 Goodman. 
 
 **% Taylor v. 
 
 Stibbert. 
 
 * 98 
 
 tute of frauds. 1 -F<?7j. 176 to 190. 1 P0w. o;z C'o/tf. 295 
 to 299. 2 Fmz. 455.t 1 -Bro. /;. Ciz. 4174 2 ^ ri? 783.$ 
 2 ^^. 407.11 ^ Bro. Parl Ca. 21. ff 
 
 *It cannot be argued that the agreements intended to 
 convey only a temporary interest, during the existence of 
 the mills then constructed. The mere circumstance of 
 turning the stream into an artificial and new bed, by dig- 
 ging a canal, negatives such an idea. Suppose the mills 
 had been burnt down the day after their erection, would it 
 have put an end to the contract ? 
 
 The establishment was in its nature permanent. It par- 
 took of the quality of the fee on which erected ; the water 
 was an appurtenance inseparable from it ; it was like soul 
 and body. 
 
 That it was intended to be a permanent establishment, is 
 evinced by the acts of the parties. They are inconsistent 
 with any other intention ; and, it is a principle, that where 
 a contract is not definite, but money laid out on it, the 
 court will infer the terms from the acts. 1 Poiv. on Cont. 
 297. 2 Eq. Ca. Abr. 48. 5 Vin. 523. 2 Fern. 373.$$ The 
 water was indispenable for the mills, and every thing essen- 
 tial to the use of a thing granted, must necessarily pass 
 with it. 1 Sound. 322, 323. 
 
 It is also settled, that where a contract is dubious, the 
 strongest construction shall be against the seller. 1 Pom. 
 on Cont. 395. 5 Rep. 7. Mill Plowd. 140.** 161. *f 171.*$ 
 289.* Co. Litt. 197. a. 267. b. Roll. Abr. 228. 
 
 These authorities establish, that the respondent sold the 
 waters of the creek. To them may be added 2 Eq. Ca, 
 Abr. 685. pi. 8. 679. pi. S. Talbofs Cases, 252.*^] 262. 1 
 Pow. on Cont. 302. 2 Vern. 363.**t 2 Ves. jun. 440.**$ 
 which show, that as the conveyance to Hugh White, junior, 
 was voluntary, it cannot prevail *against a previous bonafde 
 purchaser, for a valuable consideration ; and, that at all 
 events, as he was a purchaser with notice, the appellant's 
 claim cannot be affected by the grant to the son.
 
 STATE OF NEW-YORK. 98 
 
 Had he intended to have relied on the deed, it ought to ALBANY, 
 
 have been pleaded. Wyatt, 324. 335. 2 AtA. 240/j: 2 Eq. ^^^j 
 
 Ca. Abr. 681. pi. 2. As to the statute, it applies to here- Wetmore 
 
 ditaments. White & White 
 
 f Brewerton \. 
 Gold and Henry, contra. The contract was confined to Gamut. 
 
 the first mill erected, and the very written contract relied 
 on is not set forth by the bill, in hcec verba, and if that 
 proved be different, the bill ought to be dismissed. 2 Ves. 
 
 2994 5 Ves. jun. 452.$ In this, there is no mention of * Legal v. Ml- 
 
 fcv 
 any agreement whatever, as to diverting the water, build- ie- v . Haver- 
 
 ing a race-way, &c. The original parol agreement, can ^ c 
 never be in issue. It was nothing more than a preliminary 
 conversation, leading to the agreement, and was, when 
 that was concluded, resolved into it. 
 
 Any agreement as to the water, is expressly denied, 
 and if only one witness contradict the answer, no decree 
 can be founded upon it. As to Beardsley, his testimony 
 must be totally discarded. It is inconsistent and incredi- 
 ble ; besides, being to uphold his own acts, it is totally in- 
 admissible. 
 
 If a plaintiff claims lands by a parol agreement, no wit- 
 nesses can uphold it, for their testimony is inadmissible. 
 None, altitude the answer can be received. 2 Bro. Ck. Ca. 
 566, 567.1f Where there is a written contract, no parol f it'hitchurch v. 
 evidence is admissible, to alter or vary it, but only to rebut * coicei v. Mat- 
 an equity. 2 Vcrn. 34.** Bunb. 65.ft 2 AtA. 383.:$ 1 Bro. \f Bitutead v . 
 Ch. Ca. 93.^ 514.1111 3 Bro. Ch. Ca. 168.*t * ^- J un - 
 
 241. S. C. 1 Ves. iun. *326.*t 402.*$ 3 Bro. Ch. Ca. 388. 
 
 Irnham v. 
 
 S. C. 4 Bro. Ch. Ca. 437.*Tf 3 Ves. jun. 34.**y 5 Vcs ' J un> <-7Wl 
 
 U1f Jlckroijd v. 
 688.*^ Hndthson 
 
 The doctrine of part performance has rendered the sta- &ear*id 
 tute of frauds almost a dead letter. Except we be tied * 99 
 
 , *tJ!rodiev.Sl. 
 
 down by authorities that govern in this country, we ought i> a ui. 
 to resist it. In England it is admitted to have been carried J,J' w ', m > 
 too far, and to support it, the facts ought to be of the most J^. 
 unequivocal nature. 3 Ves. jun. 381.** ri2.**H 4 Ves. 
 '-rksmi v. Cator. * JfiV/J v. Slradling. **1f Forster T. Hale.
 
 9 CASES IN ERROR IN THE 
 
 ALBAXY, jun. 720. Amb. 586.f 1 Pow. on Cont. 308, 309. 1 Font. 
 
 Feb. 1805. ~ . . . , _ 
 
 ^ 174, 175. Kemaming in possession, is not such a tact as 
 
 Wetmore to be conclusive. The acts must be of such a nature, that 
 
 V. 
 
 White & White, the purchaser would otherwise be a loser. Here the ap- 
 " pellant is more than compensated by his profits from the 
 
 ffaisey. mill. We, therefore, contend, that the agreement insisted 
 
 on, is not clearly shown ; that part performance is not 
 proved, and that the contract, such as it was, is, from the 
 testimony, variant from that of the bill. To decide the 
 establishment to be permanent, and the appellant entitled 
 to the water, will be to make a new agreement, for both 
 parties. 
 
 Van Vechten, in reply. The answer, if viewed attentive- 
 ly, will be seen to admit the original parol agreement. With 
 this, the written contract is perfectly consistent. The bill 
 stated the substance of the agreement, and that was suffi- 
 cient. The cause was submitted in the court below, on 
 this simple question, whether the establishment were per- 
 manent or not. To state more than was necessary to show 
 that, is not, by any rule of law or equity, ever required. 
 Dormer v. For fescue, 3 Atk. 124. 132. The written agree- 
 ment disproves a material allegation in the answer, and so 
 * 1QO is admissible. It is also admissible to ^illustrate the views 
 
 of the parties. If the defendant admit the agreement in his 
 answer, he cannot, afterwards, insist on the statute of 
 frauds. 
 
 So much water was, from every principle, to be turned 
 off to the mills, as was done in the first instance. This was 
 concurred in afterwards, by both parties ; therefore, then, 
 no pretence for avoiding the contract, or excluding testi- 
 mony on the ground of uncertainty. 
 
 The agreement to build, was confessedly executed. 
 White does not pretend he ever explained his restrictive 
 idea of the contract, till after the sale to the appellant. 
 What interest did the parties think they had ; what had 
 they, in law, in the mills under the first executed agree-
 
 STATE OF NEW-YORK. 100 
 
 inent ? It must have been a fee. This they all imagined, ALBANY, 
 and the respondent White, the father, permitted the appel- v_^' y ^^/ 
 lant, under this idea, to go on expending money on the Wetmore 
 property, without ever undeceiving him. This was a White & White. 
 fraud. 
 
 The relief for the appellant must be, 1st. A perpetual in- 
 junction ; or, 2d. A conveyance, by the Whites, of their in- 
 terests. The acquiescence of the respondents since 1791, 
 is evidence of a permanent establishment. 
 
 The matters contended for by the appellant, the water, 
 &c. are incidents to the mill, not realties. The sale of the 
 interest in the mills passed them of course. 
 
 Per Cnriam, delivered by THOMPSON, J. The only 
 question litigated between the parties, is touching the right 
 to the waters of the Sagliquate creek, for the use of the 
 mills, now owned and occupied by the appellant. A brief 
 statement of some of the facts *thrown into the case, but ^ JQJ 
 
 not controverted, may afford some assistance in ascertain- 
 ing the truth with respect to those in dispute. It is ad- 
 mitted, that, in the year 1788, the appellant was seised of 
 the lands on the east side of the Saghquate creek, together 
 with an equal moiety of the creek itself. That Hugh White 
 was seised of the lands on the west side of the creek, to- 
 gether with the other moiety of the creek, and that being 
 so seised, they, together with one Beardslcy, built a grist- 
 mill and saw-mill upon the land of the appellant. That a 
 canal was dug for the purpose of diverting some of the 
 waters of the creek to those mills. That the parties con- 
 tinued to occupy them jointly, according to their respec- 
 tive proportions therein, for about three years, when the 
 appellant purchased out the shares of his copartners. The 
 purchase from Hugh White was by parol only, and upon 
 this the controversy between the parties arises, presenting 
 the following questions for examination. 1st. Whether the 
 appellant ever acquired any right to the waters of the Sagh- 
 qitate creek, for the use of the mills ? 2d. If so, whether 
 
 * 
 
 ?r m
 
 101 CASES IN ERROR IN THE 
 
 ALBANY, that was a temporary or a permanent right ? 3d. Whether, 
 y_^' ^' the purchase being by parol, the respondents can avail them- 
 
 Wetmore selves of the statute of frauds to avoid it ? 
 White & White. The evidence appearing in the case, is partly written and 
 " " partly parol, as to the applicability of which, to the subject 
 
 matter of complaint in the appellant's bill, some little diffi- 
 culty and confusion arises. The written testimony, the ar- 
 ticle of agreement, appears not to have had for its object, 
 the securing of the water to be diverted from the Sagh- 
 quate creek. It was between White, Wet mo re and Beards- 
 * 102 ky, and was ^solely for the purpose of providing for the 
 
 building of the mills, and fixing the proportion of the re- 
 spective parties therein. The matter of complaint by the 
 appellant's bill, is not for a violation of the articles of agree- 
 ment, but for an interruption in the use of the waters of the 
 Saghquate creek. This written agreement might be admis- 
 sible, as illustrative of the views and intentions of the par- 
 ties in erecting the mills, and, in some measure, explanatory 
 of the testimony of some of the witnesses ; but the right 
 to divert the water must depend upon some other evidence. 
 The bill of complaint, so far as it may refer to the articles 
 of agreement, is to be considered as a history of circum- 
 stances leading to the main subj ects of inquiry ; the right 
 to the use of the water, and the purchase by Wetmore from 
 White. The appellant alleges, that he purchased the shares. 
 of White in the mills, together with the privilege of the 
 water, but reposing confidence in the integrity and upright- 
 ness of White, he omitted to take a conveyance therefor. 
 This is the subject matter of the complaint, to which most 
 of the testimony on both sides is pointed, and which the 
 appellant alleges was not secured by writing. 
 
 The parol evidence on this subject cannot be viewed as 
 explanatory of the written agreement, or as a preliminary 
 conversation leading to a contract consummated by the in- 
 strument in writing ; but relating to a distinct and indepen- 
 dent subject. An examination, therefore, into the original 
 contract, respecting the water, in connection with the
 
 STATE OF NEW-YORK. 102 
 
 sale of the mills, and a decree bottomed thereon, would ALBANY, 
 
 T i- i i . r , i Feb. 1805. 
 
 not, I think, be travelling out or the case, or a violation v _i- -^_* 
 
 of the principle, *that the decree must be secundum allega- Wetmore 
 
 ta et probata. White & White. 
 That there was a contract made between White and Wet- 
 
 717 11A> 
 
 more, relative to diverting the water to the mills, is 
 manifest from the testimony in the cause, the acts of the 
 parties, and the confessions of White. The extent of that 
 contract will be hereafter examined. To establish this 
 contract, there is the united and uncontradicted testimony 
 of three witnesses. 
 
 Lemuel Leavemvorth, who was examined both on the 
 part of the appellant and respondents, says, the parties 
 went in the first place, to view the spot where the mills are 
 at present situated ; they then viewed the land on Whitens 
 side, and it was agreed, in conversation, that wherever 
 the mill was erected, u there the vjater should go." That 
 John Beardsley was to determine where the place should 
 be ; and that he determined in favour of the place where 
 the mills now are. To the respondents* interrogatories, he 
 answered, that he knew of a verbal contract, for appropri- 
 ating the waters of the Saghquate creek, to the use of the 
 mill or mills, to be erected on the same. Amos Wetmore 
 declared, that he heard Hugh White say, that wherever the 
 mills should be built, there the waters should go. John 
 Beardsley swore, that it was agreed between Hugh White 
 and Wetmore, that wherever the mills should be built, 
 there the water should go. In conformity to this agree- 
 ment, we find the parties digging a canal, building a dam 
 across the Saghquate creek, and turning the water to the 
 mills. 
 
 White, in his answer, I think, impliedly admits, that 
 there had been a contract relative to the water ; though he 
 says, the particular plan "for securing zV," had net been 
 matured, or carried into effect ; evidently, I ^conceive, 
 alluding to its not having been reduced to writing. 
 
 If, then, there was an agreement to divert the natural
 
 104 CASES IN ERROR IN THE 
 
 ALBANY, course of this creek, the object clearly was for the use oi* 
 r-r ' j-^_' l ^ e m ^ s - The same reason that existed at first, for turn- 
 Wetmorc ing the water, would continue to exist as long as the mills 
 White & White, remained. By a sale of the mills' generally, I should, 
 ~ therefore, incline to think the water would pass as an inci- 
 
 dent to them, without any special provision. A contrary 
 inference would be against every reasonable intendment. 
 Supposing the water thus diverted, had been the only water 
 to supply the mills, would there have been a doubt as to 
 the intention of the parties ? The quantity of water cannot 
 materially alter the case ; and, indeed, it was not denied 
 on the argument, but that the appellant had acquired a right 
 to the use of the water, coextensive with the duration of 
 the mills first built. 
 
 But it is not necessary to say, the right to the water pass- 
 ed, as an incident to the mills, in the sense above men- 
 tioned ; or, that the appellant acquired this right, at the 
 time he purchased the mills. It was, I think, amply secu- 
 red by a prior contract : and this will account for the lan- 
 guage of some of the witnesses, and the guarded expres- 
 sions in the respondents' answer. 
 
 Anna Barnard, a witness on the part of the respondents, 
 testified, that she was present at the time of the sale, and 
 that White sold *' his right and interest" in the mills, and 
 delivered up his right to the mill and mill-irons, but does 
 not recollect that any thing was said respecting the waters 
 of the creek. The reason of this, probably, was, because 
 % 105 the parties considered *the use of the waters provided for 
 
 by the former contract, made before the mills were erected. 
 Hugh White, in his answer, admits that he sold his shares 
 in the mills to the appellant, for the consideration of 
 seventy-five pounds, and that the purchase-money has been 
 duly paid. But says, " at the time of his relinquishing his 
 shares, no mention was made of any right, interest, or pri- 
 vilege, in the waters of the said creek, nor was any such 
 right or privilege included in the said contract of sale, of the 
 aid mill"- With truth, probabhj, he might so declare, be
 
 STATE OF NEW-YORK. 105 
 
 cause it was not necessary to say any thing on the subject, ALBANY, 
 
 i i i r i- Feb. 1805. 
 
 or include it in the sale, it having been provided v^^^^ 
 
 other agreement. This he does not undertake to deny. Wetmore 
 He only says, the plan was not matured and carried into white & White, 
 effect ; by which I understand him to mean, as I before - 
 observed, that no writings were entered into ; deeming 
 them necessary to mature and perfect the contract. 
 
 I the more readily adopt this construction of this part of 
 the answer, because it reconciles it with the evidence. For, 
 if White meant to be understood, that no contract whatever 
 had at any time been made, respecting the water, he stands 
 contradicted by three witnesses. 1 consider the effect of 
 this agreement, as an appropriation of the water to the use 
 of the mills ; that it thereby became, in some measure, an 
 appurtenance to them ; and that, under such circumstances, 
 a grant of the principal subject would pass the water, as an 
 incident. 
 
 The next inquiry is, whether this contract vested a per- 
 manent, or only a temporary right to the use of *the wa- * 105 
 ter ? If I am correct in the construction given to White's 
 answer, it is not such a denial of the contract, as to bring 
 it within the rule of equity, making it necessary to esta- 
 blish it, by the testimony of more than one witness. That 
 rule can only be applied to cases where the answer is a clear 
 and positive denial of the fact. 1 Vcz. 66.J But admit- 
 ting the answer to be a direct denial of any contract respect- 
 ing the water ; I should not consider it, under the circum- 
 stances of the case, as coming within that rule. It is im- 
 peached by the testimony of several witnesses, and there 
 are other facts and circumstances, corroborating the testi- 
 mony of Bcardsley on this subject. 2 Atk. 19.f 3 Atk. 
 407 6 1 Vez. 97.11 If Beardskys testimony is to be re- O ni y v. 
 
 y i i il Walker. 
 
 ceived as competent evidence, upon which to ground a do ^ Ar)Wt v . Brif . 
 cree, under the above rule, it establishes, beyond all pos- c < 
 sibility of doubt, a permanent right in the appellant to the 
 water, for the use of the mills. Beardsley being acquaint- 
 ed with the whole transaction, leading to and attending
 
 106 CASES IN ERROR IN THE 
 
 ALBANY, the building of the mills, gives a very minute account re- 
 
 x Zr^' l ^_j specting the business, and declares most unequivocally, 
 
 Wetmore that the agreement was, that the water diverted from the 
 
 y 
 
 White & White, main channel of the creek, was to be for the supply of the 
 mills for ever. In this he stands, in some measure, cor- 
 
 roborated by the testimony of Leavenworth and Wetmore^ 
 who say, that it was agreed, that wherever the mills should 
 be built, there the water should go. The latter declared 
 also, that when White sold his right and title in the mills to 
 the appellant, he supposed the use of the water perpetually 
 was intended likewise to be sold. 
 
 * 107 #lt is said, however, that Beardsky has so contradicted 
 
 himself, with respect to the consideration paid by Wetmore 
 to White, for the water, that he is unworthy of credit. 
 This allegation, I do not think well founded. In his an- 
 swer to the appellant's interrogatories, on this first point, 
 he says, that White was to have one-fourth part of the mill, 
 on account of his allowing the water to be turned from the 
 main creek, for the use of the mill for ever, and for digging, 
 draining, and turning the water ; and, in consideration ot 
 other things mentioned in a certain written contract. In 
 his answer to the respondents' interrogatory, he says, the 
 consideration that Wetmore paid White for the use of the 
 water was, that the waters overflowed the lands of Wet- 
 more, and that White was to have one-fourth part of an acre 
 of land for ever, with the mills erected thereon ; one-fourth 
 of the grist-mill, and one-third of the saw-mill, and that he 
 supposed the said contract was completely finished and car- 
 ried into effect. 
 
 The latter examination is more full and circumstantial 
 than the former, but is not, I think, so essentially variant, 
 as to discredit the witness. There is, to me, internal evi- 
 dence arising from the nature of the establishment, and the 
 acts of the parties, fortifying the conclusion, that it was the 
 intention of the parties, that so much of the water of the 
 Saghquate creek, as was necessary for the use of the mills, 
 should be permanently appropriated to that object. A con-
 
 STATE OF NEW-YORK. 10? 
 
 trary conclusion would lead to great doubt and uncertain- ALBANY, 
 
 Tf v i j Feb. J8(I5, 
 
 ty. It the appropriation was considered as coextensive \._j- ' _ y 
 with the necessity that at first existed for mills at that place, Wetmore 
 its termination would depend upon mere matter of opinion. White &c White. 
 If, with the duration of the mills first erected, doubts might 
 arise to what *extent repairs might be made, for the pur- * 108 
 
 pose of continuing the old mills ; and to say that they 
 should be suffered to go to decay, without any repairs, 
 would be doing violence to the understanding of the par- 
 ties. Public accommodation, and private emolument, were 
 probably the primary inducements for building the mills, 
 and diverting the water ; the same reasons, for any thing 
 that appears, now exist for their continuance. 
 
 The conduct of White, in not disclosing to Wetmore, at 
 the time of selling the mills, his claim of restoring the wa- 
 ter to its original channel, his sleeping so long upon this 
 claim, and permitting the appellant to expend his money, 
 in repairing and rebuilding the mills, were unconscientious, 
 and form strong grounds for the interposition of a court of 
 equity. 2 Atk. 83.f f East-India 
 
 It is true, the respondent Hugh White, swears, that he y2l? T ' 
 verily believes, he apprized Wetmore of his claims, before 
 the mills were taken down or destroyed. This I do not 
 think entitled to much weight. If the fact would warrant 
 it, he ought to have sworn positively, and not merely as to 
 his belief. Besides, it is rendered highly improbable by 
 his acquiescence for five years together. Much was said 
 on the argument, respecting the injury which the diver- 
 sion of the water would occasion to the respondents' mea- 
 dows, and much of the testimony in the cause was point- 
 ed to that object. This testimony is vague, uncertain, 
 and, in my opinion, irrelevant. If testimony of this kind 
 was proper at all, as furnishing a clew to the intent and un- 
 derstanding of the parties, it should have been confined to 
 the time when the contract was made ; and on that subject, 
 we have the estimation of White himself; for it appears, 
 from the testimony of Beardsley, *that he considered the * 1O9
 
 109 CASES IN ERROR IN THE 
 
 ALBANY, water of so little use to him, and the establishment of the 
 
 ^v^J mills so unpromising, in point of profit, that he offered to 
 
 Wctmorc give the appellant and Beardsley the use of the water for 
 
 White & White. ever together with a barrel of pork, if they would build a 
 
 grist-mill and saw-mill alone, and he to have no concern 
 
 with them. 
 
 The appellant's claim resting altogether upon parol con- 
 tracts, it becomes necessary to examine whether any ob- 
 stacle to relief is interposed by the statutes for the preven- 
 tion of fraud. I think there is not. It is an established 
 rule in equity, that a parol agreement, in part performed, 
 is not within the provisions of the statute. 1 Fonb. 182. 
 
 t Lacon v. Mer- and the cases there cited. 3 Atk. 4."|" To allow a statute, 
 having for its object the prevention of frauds, to be inter- 
 posed in bar of the performance of a parol agreement, in part 
 performed, would evidently encourage the mischiefs the le- 
 gislature intended to prevent. Money laid out in improve- 
 ments, is considered a part execution of a contract. Pow. 
 on Cont. 296. So, also, possession, delivered in pursuance 
 of an agreement, is such a degree of performance as to 
 take a contract out of the statute. Ibid. 299. Payment 
 of the consideration money has always been held as a part 
 
 tLaconv. J&r- performance. 3 Atk. 4.J 
 
 The case before us, I think, falls clearly within these 
 rules. The consideration money has been paid, possession 
 taken, and valuable improvements made. I can therefore 
 see no objection against granting the appellant such relief 
 as will quiet him in the permanent enjoyment of the water, 
 for the use of the mills, to the extent the same was used 
 and enjoyed, at the time he purchased them from the re- 
 
 ~ , spondent, Hugh * White. This is sufficiently certain and 
 
 definite, for a decree for a specific performance. 
 
 I am, therefore, of opinion, that the decree of the court 
 of chancery ought to be reversed. 
 
 Judgment of reversal unanimously.
 
 STATE OF NEW-YORK. no 
 
 Paschal N. Smith against Daniel Williams. 
 
 IN error on a bill of exceptions tendered and sealed at An owner of a 
 
 i i r i- f t_ i_ i sll 'P bottomed 
 
 the trial of a cause upon a policy of insurance, on the body for more than 
 
 of the ship Prosper, in which Williams, the now defendant, [j" 
 
 was plaintiff below. The case, as stated in the New- l ? le . st . in hei ; 
 
 Judicial acts of 
 
 Tork Term Reports* vol. 2. from the first to the fourth page fore 'gn tribunals 
 
 are prima facie 
 
 inclusive, is accurately detailed, in all respects but one. It to be deemed 
 
 .... , correct; there- 
 
 is there mentioned, in page 4. that the vessel sold under fore no inference 
 
 the attachment for g8,400, instead of 38,50O reals of vel- gainst them. 6 *" 
 Ion. In the opinion, however, of Thompson, J. page 19. 
 the sums are correctly specified. 
 
 The error now relied on was, that the judge at nisi pri- 
 its, in conformity to the decision of the supreme court, ru- 
 led the now defendant to have an insurable interest in the 
 vessel, to the extent of the sum he paid for her, though 
 she was then bottomed for a larger amount, and that, un- 
 less he, at the time of effecting the policy, knew of the 
 lien upon her, he had a right to a verdict for the value in- 
 sured, after deducting the price at which the vessel sold. 
 
 THOMPSON, J. assigned the reasons of the determina- 
 tion, as they are given in 2 New-York Term Reports, 19, 
 20, 21. 
 
 Harison, for the plaintiff. The question now before the 
 court is, whether a man buying a vessel, bottomed for 
 more than her value, has an insurable ^interest ? Where #111 
 
 a ship is hypothecated, an owner can insure only his sur- 
 plus interest, beyond the amount of the lien. Here he 
 had none. His being a bona fide purchaser does not alter 
 the question. He takes the title of his vendor, and stands 
 exactly in his situation. Therefore, as to the effect of the 
 bottomry, Delavigne and Willliams are to be considered as 
 one person, and the property equally affected by the lien, 
 whether in the hands of one or the other. It is like the 
 
 a
 
 Ill CASES IN ERROR IN THE 
 
 ALBANY, common case of a purchase of a chattel from an appa 
 vj^ l ^^ rent owner. The vendee, unless it be sold in a market 
 Smith overt, takes it subject to the rights of third persons. The 
 Williams. defendant, therefore, could acquire no greater interest un- 
 der the sale, than that which Delavigne could dispose of ; 
 that is, the surplus value beyond the hypothecation. To 
 the extent of the bottomry bond, the holder of the bond 
 is owner of the vessel ; and herein it differs from a mort- 
 gage. This will appear by adverting to a bottomry bond, 
 which is, in effect a species of insurance, nay, its twin 
 brother. In the former, the money is advanced before the 
 loss ; in the latter, after. In either case, the original owner 
 is, in case of accident, equally secure, as the money is 
 i.k- a mortgage, to be returned. By payment of a 
 -,s, an insurer becomes a purchaser; so, on a bottomry, 
 wi'i.;h is nothing mure than an anticipated insurance, the 
 lender, on making the advance, acquires the property to 
 the amount of the money he pays. Consequently, the 
 original owner cannot have any interest, excepting that 
 which remains beyond the extent of what he borrows. It 
 follows, therefore, that he should not be permitted to in- 
 sure more than that excess. A ^contrary doctrine would 
 be to tolerate double insurances, and open a wide door to 
 .fraud. A man may take up two-thirds of the worth of his. 
 ship on bottomry ; if he may also cover, by an insurance, 
 her full value, he would, in case of a loss, put into his 
 pocket, the two-thirds he had borrowed. This would be a 
 temptation to dishonesty. Reason and policy, therefore, 
 require, that only the excess of value, beyond the sum 
 for which a vessel is bottomed, should, in the original own- 
 er, be deemed an insurable interest. For the lender of the 
 money advanced, is, to the extent of the loan, the actual 
 owner. In cases of jettison, he is bound to contribute. 2 
 Val 19. 2 Emer. 504. citing Le Guidon, c. 19. art. 5. This, 
 it may be said, is the law of France, but that the rule in 
 England is different. It is not, however, on that account 
 to be preferred by us. The doctrine, from the authorities
 
 STATE OF NEW-YORK. 112 
 
 tilted, is that of the general commercial code, drawn from ALBANY, 
 the oldest books in the world, and resting upon the sane- ^L. y X^ly 
 tion of various nations in all ages, not upon the maritime Smith 
 ordinances of any particular country. For, if the vessel Williams. 
 perishes, the lender on bottomry must be the sufferer ; if 
 she be saved, he will be the gainer, and he ought, then, 
 to contribute, which can be only as owner. As a species 
 of double insurance, the policy now before the court is ne- 
 cessarily void. 2 VuL 61. 1 Emer. 236, 237. For, on a 
 contract which is purely one of indemnity, a clear and cer- 
 tain gain of the sum insured, can never be allowed to 
 take place. It is not correct to argue, that the insurance 
 will be void, or not, according as the fact of the bot- 
 tomry was, or was not, known to the insured. Igno- 
 rance, in many instances, furnishes no pretext for 
 ^upholding the policy. If a vessel be not seaworthy, the #113 
 
 insurance will be void, though it was not known that she 
 was so ; because, the concealment of a material fact, 
 though innocently done, vacates the agreement, it being 
 the duty of the insured, " from motives of common pru- 
 dence, to inform himself of every fact and circumstance 
 which may throw the smallest light on the nature and perils 
 of the proposed adventure." Marsh. 347. Millar, 40, 41. 
 46, 47. 97. to the same point. It is necessary, now, to 
 proceed to another foundation of the law of insurance, 
 which presents to the recovery an obstacle, which, it is 
 conceived, is insurmountable. Every policy bona fde 
 effected, contains an implied engagement, that in case of 
 abandonment, the underwriter shall be entitled to receive 
 the subject matter. It is an essential part of the contract, 
 that the benefit of abandonment shall be saved to the in- 
 surer. Otherwise, a loss not absolute in itself, but a mere 
 technical total, on which two-thirds may be recovered, 
 would be totally lost to the underwriter. Tested by this 
 rule, the policy, now litigated, fails ii^ an essential ingre- 
 dient. The bottomry, though latent and unknown, de- 
 stroyed that right to the property on abandonment, which
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Ft-b 1S05. 
 
 temith 
 
 v. 
 Williams. 
 
 * 114 
 
 was the basis of the insurer's undertaking, and therefore 
 avoided the policy. Any thing which takes away from the 
 underwriter those rights, on having of which he is sup- 
 posed to have entered into the contract, vacates the agree- 
 ment. A previous direction not to pursue one of three 
 routes, on a voyage, where it was usual to leave the whole 
 three to the discretion of the captain, was held to prevent 
 a recovery, because the underwriter made his calculation, 
 on *the advantage of the captain's judgment as to all. 
 Middle-wood v. Blakcs, 7 D. & E. 162. The same princi- 
 ple ought to govern on the present occasion. 
 
 Riggs and Benson, contra. Though the position, that a 
 purchaser of a chattel takes it liable to all the encumbrances 
 which affect it in the hands of the seller, were correct, still 
 it may have further exceptions, than the one arising from 
 a sale in market overt. Liens may become invalid from 
 the laches of the persons who hold them. As to markets 
 overt, what are they in this country ? Streets, for wood 
 and hay, and other articles. Shops and warehouses, for 
 goods. Wharves, for ships. If property is intrusted to 
 another in such a manner that he may dispose of it, a bona 
 jlde sale is good. It is incumbent on the holder of a bot- 
 tomry bond to take possession of the vessel on her arrival 
 at her first port. If he do not, it is a waiver of his lien, 
 and the vessel, in the present instance, being bona fide sold 
 in a market overt, for such a wharf must be considered, 
 the title of the purchaser is good against all the world. It 
 is contended, however, that he who borrows on bottomry, 
 has not in his vessel any insurable interest, except for her 
 surplus value beyond the sum taken up. There is no such 
 rule in our law, nor in that of England, for none such can 
 subsist. Suppose an owner of a ship in a foreign port, bot- 
 toms her for a sum, which he lays out in masts, yards, 
 and repairs, to enable her to prosecute the voyage ; is not 
 the vessel enhanced in value by so much as is thus actually 
 converted into ship? And cannot the owner insure that,
 
 STATE OF NEW-YORK. 114 
 
 into which the money is thus changed ? It is true, the ALBANY, 
 lender on hypothecation *has but a special insurable in- ^-'^^L' 
 terest, which he is bound to particularize. Therefore, Smith 
 that of the owner remains as before. The doct%ine of Williams, 
 double insurances does not apply to this case. It supposes 
 the insured to have been the borrower of the money. That 
 is not so here ; for the defendant, Williams, knew not it was 
 taken up. That the security was not by way of mortgage, 
 if it makes any difference in the question, operates in our 
 favour. For a mortgage passes a legal interest in the sub- 
 ject. Bottomry does not ; it only gives a right, if exercised 
 in due time, of going into court and obtaining process 
 against the vessel. The difference is the same as between 
 judgments and mortgages. The first give a lien, but no 
 interest, which is to be acquired only by legal proceedings, 
 instituted upon them. But even in the case of an abso- 
 lute assignment of a ship, if in the nature of a mortgage, 
 the mortgagor is deemed the legal owner, liable for the 
 necessaries and repairs of the vessel, and, until posses- 
 sion taken by the mortgagee, he alone is entitled to sue 
 for the freight earned. 1 H. Black. 117.(?z.)f Can it, f Chinnery T. 
 
 . . . Blnckburne. 
 
 then, be said, that the mortgagor has not an insurable in- 
 terest ? If so, why has not the contract been disaffirmed, 
 and the premium returned ? It has been urged, however, 
 that the right to have the benefit of the property abandon- 
 ed has been lost to the insurer, and therefore the policy is 
 void. Taking it for granted, as has been insisted, that the 
 now defendant acquired by his purchase no title, but what 
 was subject to the lien on the vessel, as he was a bona 
 fide purchaser, he had a recourse against the vendor, and 
 on abandonment, that recourse passed with the vessel to 
 the insurer. Besides, the idea of this loss of *the proper- 
 ty insured, proceeds on the supposition that the ConsuladQ 
 in Spain rendered a proper judgment. This we deny, for 
 we contend that the lien by the bottomry was gone, upon 
 the vessel's sailing from the port of her first arrival. The 
 lender should have followed the ship, demanded his money,
 
 116 CASES IN ERROR IN THE 
 
 ALBANY, and on refusal, have applied to the admiralty for process 
 
 Feb. 1805. . IT- i 
 
 i _._ _^ i against the vessel. It is not, however, true, that the pro- 
 Smith perty has been lost to the underwriter. He gets the amount 
 Williams. of what it sold for, deducted ; and, therefore, obtains the 
 full benefit of the abandonment. 
 
 Hanson, in reply. To make our streets and wharves, 
 markets overt, they should have clerks, and records of the 
 sales made in them. Those are the ingredients required 
 by law. There is nothing, therefore, shown to do away 
 the position, that the defendant's title could be no better 
 than his vendor's. If so, he had no interest, but in the 
 surplus, beyond the amount of the bond. Laying out on 
 the vessel whatever is raised on bottomry, does not in- 
 crease the interest of the borrower. For it is at the ex- 
 pense of the lender. His money, not that of the insured, 
 has, in case of loss, been expended. To sanction, there- 
 fore, the present policy, would be in fact to authorize dou- 
 ble insurances. It is a mistake to imagine there ought to 
 have been a return of premium to justify a resistance to 
 the suit, or rescind the contract, as it is called. In cases 
 of non-compliance with warranties, the premium is not al- 
 ways returned, though it may be recovered in the very 
 action where the policy is declared to be void. We trust, 
 therefore, a venire de novo will be directed. 
 
 *Per Curiam, delivered by LANSING, Chancellor. It has 
 been admitted by the parties, and it is so stated in the bill 
 of exceptions in this cause, that the defendant was entitled 
 to have recovered in the court below, if the interest in- 
 tended to be covered by the policy was insurable. 
 
 It has also been admitted in argument, that the intent of 
 the parties, dcdudble from the policy, was to constitute it 
 an interest, and not a wager policy, and the only questions 
 on which the opinion of the court is required, are, 1st. 
 Whether the interest of the obligee, of the bottomry bond, 
 was a valid lien, and such a one as would be enforced by
 
 STATE OF NEW-YORK. 117 
 
 the maritime law ? 2d. Whether the vessel in question, ALBANY, 
 being subject to a bottomry bond, greater in amount than Feb- 1805> 
 its value, was imsurable by the defendant, Williams ? 
 
 The only objections which have been urged to the validi- 
 
 ty of the bottomry bond, as affecting the interests in con- 
 
 troversy between the parties, are, 1st. That it was not en- 
 forced in due time ; 2d. That as the defendant, Williams, 
 was ignorant of its existence at the time the policy was 
 underwritten, it ought not to vitiate it, as having been 
 made under the impression of mutual error. 
 
 As to the objection that the bottomry bond has not been 
 enforced in due time. 
 
 The policy appears to have been made on the 13rh day 
 of May, 1800, on a voyage from New-York to Algiers, 
 with liberty to touch at Cadiz. The ship was purchased in 
 the November preceding by the defendant, Williams, of Ca- 
 timir Ddavigne, for whom a bottomry bond had been ex- 
 ecuted on it, by procuration, at Amsterdam, previous to 
 such sale; *but no other circumstance respecting the time * 118 
 
 when such bond was executed, the voyage described in it, 
 or the port considered as the home port of the ship, as to 
 the bottomry, were offered in evidence. 
 
 It, however, appears, that the bottomry bond was given 
 for 6,50O dollars, which is 1,500 more than the valuation of 
 the ship in the policy, and that she was sold at Cadiz, by 
 order of the Royal Consulado, who, it is not contended, 
 had not a competent jurisdiction, and who acted judicially 
 on the occasion. 
 
 The judgments of foreign courts, having competent ju- 
 risdiction, have always been considered prima facie, as 
 binding in the points on which they have expressly adjudg- 
 ed. The period of the inception of the contract, on the 
 voyage which was the object of it, not having been disclo- 
 sed, for aught that appears, it may, though made at Am- 
 sterdam, as it was done by procuration, have been execu- 
 ted the day before the sale to the defendant, and may have 
 attached to the voyage insured, terminating it at Cadiz.
 
 113 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Smith 
 Williams. 
 
 * 119 
 
 The ship was at New-Tor k, at the time of the sale, and 
 there is no proof that she left that port, till she sailed oft 
 the voyage insured. Hence there is no ground legally td 
 infer a laches in enforcing the lien created by the bottomry 
 bond. 
 
 If the voyage to Cadiz, was the voyage insured, the in- 
 termediate transfer to the defendant, Williams, certainly 
 could not avoid the bond, or impair the rights of the obli- 
 gor. For if a transfer, pending the voyage, constituted 
 an avoidance, the lien supposed to be created by the bot- 
 tomry bond, must be completely in the power of the obli- 
 gor to defeat, whenever *it comported with his views. 
 This would lead to consequences too clear to require eluci- 
 dation. 
 
 As to the 2d objection. The insurer is a perfect stran- 
 ger to the subject insured ; whatever relates to it, must be 
 considered as peculiarly resting in the knowledge of the in- 
 sured, and the law imposes it on him to acquire a competent 
 information respecting it. This is a salutary and well esta- 
 blished rule. For how is it possible to determine with uner- 
 ring certainty, the exact state of intelligence he possessed ? 
 Or what portion of the ignorance he possesses, is to be at- 
 tributed to his want of exertion, or to his wish of conceal- 
 ment of the latent defects, which may affect his interest ? 
 If he does not possess the full knowledge of every cir- 
 cumstance respecting it, involving the interests of others, 
 it may be his misfortune, but it must legally be imputed to 
 him as a fault. 
 
 Every reasonable intendment is to be admitted in support 
 of the judgment of the Royal Consulado. The defendant, 
 Williams^ was on the spot, clothed with the powers of owner 
 and master. He was interested, in the one capacity, to 
 vindicate his right of property ; in the other, as agent for 
 the concerned, to repel any illegal claims : He had an op- 
 portunity to make a defence. In all events, if the judg- 
 ment was examinable, he might have furnished the reasons
 
 STATE OF NEW-YORK. 
 
 and proofs to warrant it ; that this had not been done, af- 
 fords a strong inference that it was not in his power. 
 
 The second question is important as it respects the gene- 
 ral interests of commerce, and it is peculiarly desirable 
 that a decision of the court should satisfactorily put it at rest. 
 
 * Whenever the bottomry and the policy are coextensive, 
 as to voyage and time, no collision can arise. If the ship 
 arrives at its port of destination in safety, the policy is sa- 
 tisfied ; but the lien created by the bottomry still exists. If 
 the ship had been injured by any of the perils insured 
 against, so as to entitle the insured to an average loss, it 
 could not affect the interests of either of the parties to the 
 bottomry bond. But if the ship perishes totally; or if a 
 technical loss is sustained before she arrives at her port, 
 the insured would recover, if the policy is valid, without 
 interest. For the value of the ship being covered by the 
 bottomry, the obligee cannot recover the money advanced 
 on it ; his right to it ceasing with the destruction of the 
 ship, or the necessary dereliction of the voyage. To this 
 intent, the obligee in the bottomry bond must, therefore, 
 be considered as owner, for he is to receive nothing unless 
 the voyage is made. 
 
 If the bottomry interest existed before the policy was 
 underwritten, and, instead of being limited to the ulterior 
 port of destination described in the policy, was to be en- 
 forced at any intermediate port at which the ship might 
 touch ; or, if the ship was so much deteriorated as to con- 
 stitute it a technical total loss, at the port of her destina- 
 tion, no abandonment could be made with effect, and the 
 insurers would be entangled with difficulties, which they 
 had no reason to calculate upon, at the time of making the 
 policy. 
 
 The policy of insurance, is always considered as a mere 
 contract of indemnity, and the policy of the maritime law 
 is averse to any devices which may weaken the inducement 
 to exertions, for saving either ship or cargo by the owner, 
 master or mariners, and *operate as an incentive to fraud ; 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Smith. 
 
 v. 
 Williams.- 
 
 * 120 
 
 * 121
 
 *i CASES IN ERROR IN THE 
 
 ALBANY, but in the first case put, it would operate to place the value 
 
 Feb. 1805. t 
 
 V^^K,-^/ of the property lost by the obligee in the bottomry bond r 
 
 Smith j n the pocket of the insured. 
 
 Williams. \y e fi n( j no express authorities on this subject, in our 
 
 own, or the British courts ; but if the positions laid down 
 
 1 2 Emer. 386. by Emerigori\ and Valin^. which have been cited, are to 
 
 * 2Val.6l. be received as correct, they would fully establish the point, 
 
 that the value covered by the bottomry is not an insurable 
 
 interest. 
 
 To the objections which have been urged against receiv- 
 ing the law from Valin and Emerigon, on their authority, 
 it may be observed, that their positions on this subject, ap- 
 pear untinctured by local considerations ; and if the mind 
 assents to their correctness, there can be no reason for re- 
 sisting truth, from whatever source it may be derived. 
 
 The treatise of Valin, is professedly a commentary on 
 the ordinances of Louis XIV. But in illustrating the doc- 
 trines they sanction and enforce, it refers to the antecedent 
 usages which had obtained in the several nations of Eu- 
 rope ; the ordinances of the free Imperial, French, Italian, 
 and Hanscatic towns ; the city of Wisbuy on the Baltic ,- 
 imperial and royal ordinances ; and, among the rest, some 
 of their principles are said to have been deduced from the 
 Conference de ordinances of Eleanor, wife of Henry 1.1. king of En- 
 Louis XlvTf. gland, then Duchess of Guyenne, one of the fiefs held of 
 the crown of France, and of consequence, in the spirit of 
 those times, the duchess was considered as one of its vas- 
 sals. These ordinances were afterwards confirmed and en- 
 larged, according to the French writers, by her son, Ri- 
 chard I. king of England, who was also Duke of Guyenne^ 
 * 122 and, of course, stood in the *same relation to the crown- 
 
 of France with his mother. But the English respect them 
 as the production of that king. This is merely intimated 
 by way of illustrating the origin of the usages which in-, 
 fluence the modern commercial regulations, and the little 
 regard which has been paid to the authority which promul- 
 gated them ; for, in this instance, on the foot of authority.,
 
 STATE OF NEW-YORK. 
 
 ALBANY, 
 
 Feb. 1805. 
 
 they would probably have been indignantly rejected by the 
 French, as the act of one of the feudatories of the mo- 
 narchy. 
 
 The laws of Oleron could receive no sanction in France ; 
 and, perhaps, not in England, from the authority of King 
 Richard; and it has even been doubted, from the language 
 in which they are published, and from the places mentioned 
 in them, whether their object extended beyond the duchy 
 of Guyenne. There were unfavourable circumstances 
 arising from the relative situation of the prince who 
 enacted, and the 'princes whose subjects received them, 
 to repel their introduction, even on the ordinary ground of 
 public utility and convenience ; and yet it appears, from 
 the French writers, that they are considered as forming 
 part of their maritime code. 
 
 The laws of Oleron have been mentioned as a compila- 
 tion, and probably were so. They must have obtained the 
 authority attached to them, in consequence of their intrinsic 
 worth, and the estimation in which they were held, to re- 
 gulate the intercourse between the merchants of different 
 nations. 
 
 If such their origin, and such the steps in which we 
 trace the progression of these celebrated codes, from an- 
 cient to modern times, why should the inquiry whence they 
 originated, be permitted to banish from our country, the 
 well established, salutary usages *of trade, sanctioned by 
 the long experience of the European nations ? 
 
 The English courts consult the French authors, on ge- 
 neral maritime law. Park observes, that the ordinances of 
 Louis XIV. " are an excellent body of sea-laws, to the 
 merit of which all Europe has borne testimony ;"f and he ^Park's lnt>- a . 
 remarks, that they had the good fortune to meet with a la- 
 borious commentator in Valin, who, he says, " being tho- 
 roughly sensible of the advantages which his country must 
 necessarily derive from such an excellent code, has, with a 
 degree of labour and industry which excite our admira- 
 tion, and which are highly deserving of imitation, placed it 
 
 12*
 
 1*3 CASES IN ERROR IN THE 
 
 ALBANY, in the most favourable point of view ; has cleared up every 
 
 Feb. 1805. , . . , ... 
 
 y^-v^^, obscurity, by tracing their laws to their ancient sources. 
 
 Smith &C. 
 
 Williams. Of Emerigon\ he also speaks in terms of high approba- 
 
 tion, and of the " infinite labour, unwearied study and re- 
 
 t Pr*V jtoro. . . ,. LI i i ,1- 11 
 
 40, flection, with which he had made his collection. 
 
 All our laws relative to insurances and bottomry, are de- 
 rived to us, from similar sources, and I rather think, 
 though I speak only from general recollection, not having 
 examined the point, that few other than restraining statutes 
 exist in Britain respecting them. 
 
 This case has been likened to the case of a judgment and 
 mortgage ; but in both cases, though the existence of the 
 lien must necessarily terminate by the operation of a title- 
 paramount, or with the destruction of the subject on which 
 it attaches, the debt survives. The right of the holders of 
 those securities, may be more circumscribed by events ot 
 that description, as to object, but retain all their energy as 
 *24- to the person *and remaining property of die judgment 
 
 debtor, or mortgagor, and the safety of the property bound 
 by the judgment or mortgage, does not form the es- 
 sence of the debt. Not so with a bottomry interest, which 
 perishes with the ship to which it attaches. 
 
 It will be perceived, that I have not confined myself pre- 
 cisely to the line in which this case has been discussed, or 
 pursued it in the extent to which it was protracted ; that I 
 limit my opinion simply to the points, that there is no 
 ground to question the judgment of the RoijalConsulado, and 
 that the owner of a ship, covered by a bottomry bond, to an 
 amount beyond her value, ha"s not an insurable interest. 
 
 I am therefore of opinion, that the judgment of the su* 
 preme court be reversed. 
 
 Judgment of reversal.
 
 re- 
 
 STATE OF NEW-YORK. 124 
 
 Abraham Bloodgood, Appellant, against Martinus 
 Zeily, Respondent. 
 
 * 125 
 THE respondent, by his bill, in the court below, set Ifafteramort- 
 
 f gage te forfeit- 
 
 forth, that in 1783, he purchased from the appellant a tarm, e d, and execu- 
 
 then lying in the county of Albany, called the Clabergh, for a ' 
 which he was to give 4507. That of this sum he paid, on ' 
 the purchase, 1007. in *money, 25 skepples of wheat, and *' 
 8 civt. of flour, executing, for the residue, a bond and mortgage mo- 
 
 ney, be made ot 
 
 mortgage, dated the 24th of February, 1784, being the day oilier property, 
 
 ~ , redeemable on 
 
 after the date of the conveyance to himself. That the ap- paying a certain 
 
 , , , , sum at a future 
 
 pellant having obtained judgment on the bond, sued out, dayj suc ], con . 
 
 on the 1st of September, 1789, a/?, fa. directing a levy to " 
 
 be made, for 5107. debt and costs, which was accordingly 
 
 done. That a sale did not actually then take place, be- w ted*eml 
 
 cause the respondent, on the 19th of the same month, in not a defeasible 
 
 , purchase; there- 
 
 erder to obtain a longer time for payment, assigned to the f re,if after lapse 
 
 appellant, as an additional security, for the money due to r cpay ment y ,' the 
 
 him, class-rights for 1,400 acres of land, located at the 
 
 south end of Cayiiga lake, with a power, authorizing him . 
 
 to take 'out letters patent, in his own name ; and the appel- ? l i ' ) as ^, i 1 1 L l 4| not t) ^ 
 
 lant, at the same time, executed to the respondent, by way grantor win be 
 
 ... , . r , entitled to an 
 
 of defeasance, a bond for 3OO/. conditioned, that it the re- account, and the 
 
 spondent, his heirs, &c. should pay the appellant, his heirs, *{, e land ' was 
 
 &c. 2507. within one year from the date thereof, then the ^'- 'jj 11 ,,]? the 
 
 assignment of the class-rights should be void. The bill j^-J^S 
 
 then stated, that the appellant, in October, 179O, under an tiejMto ^credit, 
 
 execution issued upon his former judgment, sold the Cla- not demand a 
 
 . .. . redemption, for 
 
 bergh farm, and having himself purchased it in, directed mor e than six 
 
 i years afte** *'*** 
 
 the sheriff not to sell the personal estate of the respondent, (llty of , 
 as he, the appellant, was fully satisfied. That immediate- 
 ly after, the appellant declared to the respondent, he knew 
 
 mortgage bond, 
 
 nds, so as to get for the estate a given sum, 
 *.he lands, be a condition precedent ; Qwerj/.
 
 225 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Bloodgood 
 
 v. 
 Zeily. 
 
 * 126 
 
 CASES IN ERROR IN THE 
 
 of two persons, who were desirous of purchasing the farm, 
 which he meant to sell, for 50O/. and therefore, requested 
 the respondent to show them the best lands, it being his 
 intention to divide with the respondent, the surplus which 
 " might arise after payment of debt, interest and costs ; 
 therefore, to avoid the expense and trouble of a deed from 
 *the sheriff, the respondent, at the instance of the appel- 
 lant, conveyed the farm to him, in consequence of which, 
 he entered into possession, and sold the property for 500/. to 
 .one Henry Effener, to whom the respondent had, by the ap- 
 pellant's request, shown the estate. That letters patent had 
 been obtained by the appellant, in his own name, for the 
 class-right lands, which were worth 4,000/. The bill then 
 set forth the usual application for a settlement, offering to 
 allow all reasonable costs, &c. if the appellant would ac- 
 count for the proceeds of the sale to Effener, and reconvey 
 the 1,400 acres, which it concluded, by praying to be de- 
 creed. 
 
 The appellant, by his answer, admitted the purchase o 
 the Clabergh farm, its subsequent sale under the execu- 
 tion, and his buying it in, as alleged ; but the sum direct- 
 ed to be levied, or the amount precisely due, he could not, 
 he said, recollect. He acknowledged also, the assignment 
 of the class-rights, his taking out the letters patent in his 
 own name, the executing to the respondent the bond for 
 SOO/. conditioned as set forth, and selling the farm to Ef- 
 fener ; but he insisted the assignment of the class-rights 
 to have been in consideration of 100/. therein expressed^ 
 and denied that it was made as a security for payment of 
 the debt due on the bond and mortgage ; or that he had 
 any communication with the respondent, after the sheriff's 
 sale, or requested a conveyance ; on the contrary, he aver- 
 red, that he received a deed from the sheriff, dated the 
 12th September, 1791 ; though he acknowledged to have 
 sold in 1796, the 1,400 acres of class-rights, to Simeon t Dc 
 Witt, esquire, for 500/. which was the highest price that 
 could then be obtained.
 
 STATE OF NEW-YORK. 
 
 *On the nature of the assignment of the class-rights, 
 whether it was a defeasible purchase, or merely an addi- 
 tional security, as both parties relied on the facts in the bill 
 and answer, neither examined any witnesses. To show, 
 however, an adequacy of price, in the consideration stated 
 in the answer, the president of the senate was interrogated, 
 and he deposed, that in September, 1789, the value of 
 class-rights was from five to 10/. per 100 acres. That ia 
 1790 and 1791, he located 13,000 acres, for about two 
 shillings per acre. That in 1792, he purchased, for 100 
 dollars, a lot of 600 acres, more valuable than the class- 
 rights in question, and on which they adjoined. 
 
 To establish the sum due on the Clabergh farm, at the 
 time of its sale, the agreement to divide the surplus, after 
 satisfying the appellant, the subsequent purchase by Ef- 
 fener, and the liability of the appellant to account for the 
 value, two witnesses were, together with Effener himself, 
 
 examined. 
 
 The two first deposed, they were present when the pro- 
 perty was sold by the sheriff; that the appellant acknow- 
 ledged his original demand was only 5OO/. from which were 
 to be deducted some payments received ; one to the 
 amount of 100/. which had not been credited. That the 
 appellant further said, if the respondent would show the 
 best lands, so that 500/. might be obtained on the resale, 
 he should have the whole amount of what might remain, 
 after discharging debt and costs. 
 
 Effener testified that the respondent, in consequence of 
 a written request from the appellant, showed him the Cla- 
 bergh farm, of which he became the purchaser, for 500/. 
 
 Upon these facts, his honour the Chancellor decreed, 
 tc that the accounts between the parties, relating *to the 
 mortgage, remained closed, the mortgage being satisfied: 
 but inasmuch as it had not satisfactorily appeared to the 
 court, whether the 100/. proved to have been paid by the 
 complainant, to the defendant, was the consideration 
 in the assignment of the 
 
 ALBANY, 
 
 Feb. 1805. 
 
 * 128 
 
 ft
 
 128 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Bloodgood 
 
 v. 
 Zeily. 
 
 * 129 
 
 acres, or another sura of money ; and inasmuch as that as- 
 signment was considered by the court, as an additional se- 
 curity for the money payable on the mortgage, and made 
 for no other purpose or intent, and inasmuch as the de- 
 fendant has admitted, that he procured letters patent for 
 the 1,400 acres, which he has since disposed of; and as 
 the court was not fully advised, to what measure of com- 
 pensation the appellant was entitled for the 1,400 acres ; his 
 honour directed, that it be referred to a master, to ascertain 
 when and in what manner the 100/. was paid to the com- 
 plainant; what was, on the 1st of December, 1792, the va- 
 lue of the said 1,400 acres, and what their value on the 
 same day, in the year 1796, and that a master examine 
 EJfener, whether, at the time he delivered the written re- 
 quest mentioned in his deposition, to the complainant, or 
 at any time afterwards, the complainant showed to him the 
 mortgaged premises, or any, and what part thereof ; and 
 that the said master report the proofs taken in the pre- 
 mises, and his opinion thereon, and that all further direc- 
 tions be reserved, until such report shall be made." From 
 this decree, the case now came up, on appeal, and the 
 Chancellor thus assigned his reasons : 
 
 Mr. President On this case, three questions arise. 
 1st. Whether the respondent is entitled to an account ? 
 2d. Whether, to the surplus of the production of the sale 
 by the appellant, after satisfying #debt and costs ? 3dly. 
 Whether to a conveyance for the 1,40O acres located, and 
 granted to the appellant, or a compensation for them ? 
 
 As to the first question, the parties have not made out 
 what was the consideration money agreed to be paid on 
 the purchase of the farm in question. The respondent al- 
 leges it was 450/. The appellant, in his answer, declares 
 he does not recollect it, and the deed imports it to be 410/. 
 The respondent alleges, that 100/. some wheat and flour, 
 were paid on account, and the mortgage taken for the resi- 
 due.
 
 STATE OF NEW-YORK. 129 
 
 The mortgage is also for 410/. It is, therefore, evident. ALBANY, 
 
 ... r L Feb - 180S - 
 
 from the written transactions or the parties, that the sum 
 
 due on the 24th day of February, 1784, the date of the 
 mortgage, was 410/. ; and though the respondent's allega- Zei| y- 
 tions are not otherwise to be regarded, if not admitted or 
 verified, than as limiting his claim, if they are admitted to 
 that intent, it appears from his own showing, that the mo- 
 ney, wheat and flour, alleged in his bill to be paid in satis- 
 faction of the consideration money, were paid prior to the 
 execution of the mortgage, and, therefore, cannot be re- 
 ceived as a credit on the debt secured by it. 
 
 There is no other allegation in the bill, of a payment 
 made on the part of the respondent, though one of the wit- 
 nesses swears, that at the time of the sale, the respondent 
 alleged, and the appellant admitted, that a credit had been 
 omitted of 100/. ; and the subsequent declaration of the ap- 
 ptllant, that he was satisfied with the product of the sale of 
 the farm, and his direction to stay the sale of the personal 
 property of the respondent, appear to have been prompted 
 by the admission of such payment. 
 
 *This is strongly corroborated, by the result of the cal- 
 culation of the amount of the principal and interest, payable 
 on the mortgage, and the amount of the moneys admitted 
 to have been paid in satisfaction, from which it appears, 
 that at the time of the sale, a sum, somewhat exceeding 
 100/. beyond the production of the sale, was necessary to 
 satisfy the appellant. 
 
 Both parties seem to have conceded, that the debt was 
 satisfied, and the respondent has not pretended that it was 
 overpaid ; though, from the irregular mode in which the 
 business was conducted, the precise manner in which it 
 was effected, cannot be satisfactorily developed, nor does 
 it appear to me necessary to attempt it ; for there is ground, 
 in my opinion, to consider the account respecting the mort- 
 gage as closed, excepting only as to one item, which re- 
 quires some further examination. 
 
 P P
 
 130 CASES IN ERROR IN THE 
 
 ALBANY, The 100/. which the respondent alleged he had paid, and 
 v^^!^/ the appellant admitted to have been paid, rests merely on 
 Bioodgood those declarations, made at the time of the sale of the 
 zJiiy. farm. No receipt has been produced ; no circumstance 
 disclosed, from which the time and manner of the pay- 
 ment can be collected. Connecting these considerations 
 with the manner of adjusting the class-rights, some doubts 
 are excited in my mind, whether the 100/. so paid, is not 
 the sum described as the consideration money in the as- 
 signment of the class-rights. 
 
 To elucidate this point only, and not to open the account 
 on the mortgage, I think it a proper object of reference to 
 a master. 
 
 As to the second point. Whether the respondent is en 
 titled to the difference between the purchase and sale price 
 of the farm ? 
 
 * 13 j #Here the respondent has limited his demand, by hi& 
 
 bill, to one half; the evidence would entitle him to the 
 whole, if to any thing. 
 
 That the appellant promised that he would divide such 
 difference with the respondent, is not positively denied by 
 the appellant in his answer ; and it has been proved by 
 two witnesses who were 1 present, and swear to the con- 
 versation. But they declare that the promises were made 
 on the condition that the respondent should show " the best 
 of the land," to persons disposed to become purchasers, so 
 as to enable him to sell it at 500/. It is proved that the 
 appellant sold the land for 500/. But though there is 
 proof that the appellant required the respondent to show 
 the farm, by a letter delivered to him, by Henry E/fener, 
 the person who afterwards purchased it, there is no evi- 
 dence of a compliance with that request. 
 
 The result expected to be produced by the respondent's 
 showing the farm, was actually produced by the selling it 
 for SOOl. ; but it is not ascertained whether he did, or did 
 not, perform the act, which entitled him to the bene- 
 fit of the appellant's promise. If he did not, I can dis.-
 
 STATE OF NEW-YORK. 
 
 131 
 
 cover no ground, on which I can decree its performance, 
 for the showing the land, was in the nature of a condition 
 precedent. The delivery of the letter containing this re- 
 quest, and the subsequent purchase of the farm, by the 
 bearer of it, for the sum fixed by the agreement, I think, 
 however, raises that kind of presumption that the service 
 was actually performed, which will warrant a further in- 
 quiry out of the ordinary course ; I therefore, also, refer- 
 red *it to the master, to inquire whether the respondent 
 showed the farm to Henry Ejfener, in consequence of the 
 letter, or at any other time before, or after it was 
 written. 
 
 I further stated, Mr. President, that I should have no 
 objection, on the coming in of the report on this subject, to 
 hear the parlies, on the regularity of this last point of re- 
 ference, if either of them, from its nature or object, sup- 
 posed it not in strict unison with the course of proceeding 
 in the court below. 
 
 As to the third point. I have little doubt that the assignment 
 of the class-rights was made under the pressure of an exe- 
 cution, without an advance of money on account of the pur- 
 chase ; for the appellant does not pretend it in his answer, 
 and the nature of the transaction forcibly repels any pre- 
 sumption arising from its acknowledgment in the assign- 
 ment. But whatever the intent, all the circumstances at- 
 tending it indicate, that, equitably construed, it can only 
 be considered as an additional security. The bond speaks 
 a plain language. It contains a clause in the condition, that 
 if 250/. were paid in one year, that then, not only that 
 bond, but the assignment should be void. It was coupled 
 with a forbearance for one year, and for this forbearance 
 150/. was exacted, beyond the legal interest, if the respond- 
 ent should have it in his power to redeem, at the expira- 
 tion of that period. I am, therefore, very clear, that the 
 doctrine of conditional purchase-right is wholly inapplicable, 
 and that the appellant ought to respond for the 1,4QO acres 
 of land located. 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Bloo<lgood 
 
 V. 
 
 Zeily. 
 
 * 132
 
 132 CASES IN ERROR IN THE 
 
 ALBANY, If this land had not been alienated, the appellant having 
 
 become a trustee for the respondent, so soon *as the 
 grant to him was perfected, a conveyance of it to the re- 
 spondent would, I think, under the circumstances of this 
 case, be a thing of course. But the appellant alleges that 
 
 1 n Q 
 
 he has sold it ; and, as it is not pretended that Mr. De 
 Witt, the grantee, had notice of the trust, the conveyance 
 to him must be considered as valid, and hence it may be- 
 come a question of some difficulty, what ought to be the 
 measure of compensation. 
 
 As then advised, I incline to think, that the period at 
 which the land ought to be valued, was the time of the de- 
 mand, which is stated to have been in 1796, though the sale 
 was made in 1792. 
 
 Without, however, giving an opinion on this subject, I 
 ordered it to be referred to a master, to ascertain what was 
 the value of the 1,400 acres of land, at both those periods, 
 but if any improvements had been made thereon, exclusive 
 of such improvements and the sum expended by the appel- 
 lant, in obtaining the letters patent therefor. 
 
 The question respecting the validity of a sale of an equity 
 of redemption, which was urged in the course of the ar- 
 gument, is settled, I conceive, by the respondent's own 
 showing, that he confirmed the sale by a subsequent con- 
 veyance. 
 
 Lush, for the appellant. This case presents two ques- 
 tions. 1st. Was the respondent entitled to one half of the 
 surplus, if any, on the sale to EJfener, of the Clabergh 
 farm? 2d. Was the conveyance of the class-rights, a de- 
 feasible purchase, or a mortgage ? On the first point, it is 
 
 evident, there was no surplus in fact. A short statement 
 
 will show this.
 
 STATE OF NEW-YORK. *134 
 
 * February 24th, 1T84, there was due - 410;. ALBANY 
 
 Interest to the 19th September, 1789, - - 159/. 18 Feb. 1805.' 
 
 Due the appellant on that day 569/. 18 Bloodgood 
 
 Deduct then paid 100 v. 
 
 Zeily. 
 
 Balance remaining 4G9J. 13 
 
 Add interest from thence to the day of sale 311. 
 
 Poundage and costs - - 171. 
 
 Due on the Clabergh farm when V>ld 5171. 18 
 
 It is, therefore, clear, then, that the above sum, and 
 not 374/. only, was justly owing to the appellant when 
 the property was brought to sale. The price, therefore, 
 paid by Effener, could not yield a surplus. But allowing 
 that there was one, still the appellant would not be bound to 
 pay it over. His declarations, that are now relied on, and 
 endeavoured to be turned against him, were made in the 
 unsuspecting goodness of his heart, and without any con- 
 sideration. They amounted to nothing, and can be con- 
 sidered but as a nude pact. It may be said, that a very tri- 
 fling thing will be sufficient to raise a consideration, and 
 for this the authority of 1 Pow. on Cont. 342, 343. may be 
 cited. But he does not seem to have apprehended the 
 cases to which he refers. ' They merely establish, that 
 where a consideration has passed, a very little will amount 
 to an acknowledgment. Thus, in the decision from Croke^ , SirJlnthonu 
 A. demised to B. and B. assigned to C. who promised A. ,f/ Mr/ y v ' A /. 
 to pay the rent due, if he would produce to him the deed $ 7 ' 
 by which it was reserved. A. showed him the deed, and 
 held that he was bound. So in that from Dye r,$ the de- t 272. b. n. (32). 
 
 fendant had rectiv-.-d 50/. from the debtor of the plaintiff, 
 
 and when called on for it, *said he was not at leisure, but #135 
 
 would pay it at another day. To make a contract valid, both < 
 
 parties must be bound. Here the respondent was not, for 
 he never assented. Upon this principle, therefore, the 
 contract was null, and though a surplus had arisen, it could 
 not have been recovered. 
 
 The mere inspection of the assignment is sufficient to
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Blood good 
 Zeiiy. 
 
 * 136 
 
 determine the second question, and evince it not to be a 
 mortgage. It has not one single feature belonging to such 
 instruments. There is no loan of money in it; no stipula- 
 tion for repayment; no covenant; no remedy upon it. 
 These are necessary ingredients to {create a mortgage. 
 The first is peculiarly essential. A defeasance cannot be 
 presumed ; for the English practice on this point is un- 
 known to us*. Nothing can be argued from its not appear- 
 ing that the assignment was ever recorded ; for, when it 
 was executed, class-rights were choses in action. There is 
 one circumstance, which seems conclusive in ascertaining 
 the nature of the deed. The appellant was empowered to 
 take out the letters patent in his own name, and thus en- 
 ter on the land. Had the instrument been intended to ope- 
 rate as a mortgage, this would not have been done; for, 
 under that species of security, toe mortgagor always re- 
 mains in possession. This departure from general usage 
 shows a mortgage was never intended. The determina- 
 tions in Jason v. Eyres, 2 Ch. Cas. 33. Ifoward v. Harris, 
 1 Vern. 33. Willett v. Winnell, ibid. 488. and Jennings v. 
 Ward, 2 Vern. 520. which may be adduced, as strong ca- 
 ses of redeemability, against the tenor of deeds, do not 
 apply. They only settle the rule of once a mortgage, and 
 ever a mortgage. But Cotterell v. Purchase, Cas. temp. 
 Talbot, 61. goes the *whole length of the case before the 
 court. It was there held, that an absolute conveyance, ac- 
 companied with possession, will not easily be presumed a 
 mortgage, though there be an incongruous covenant in it. 
 In Ens-worth v. Griffith, 1 Bro. Par I. Ca. 149. a purchase of 
 an equity of redemption by a mortgagee, though accompanied 
 with a written memorandum of an agreement to permit a 
 redemption, was, after a lapse of the day, ruled to have 
 become absolute, and principally on account of the full 
 worth of the estate having been paid. This circumstance 
 is exactly analogous to the ground of the appellant's claim. 
 Barrell v. Sabine, 1 Vern. 268. shows the distinction be- 
 tween a conditional purchase, and a mortgage. The first 
 6
 
 STATE OF NEW- YORK. 
 
 136 
 
 requires a strict adherence to the day limited for the 
 repurchase, because lending and borrowing is not the basis 
 of the contract, and, therefore, though the value of the 
 property was greatly enhanced, and there was a clause to 
 restore, on repayment, on the day appointed, the court 
 refused to direct a reconveyance, as the sale was absolute. 
 The same principle is found in Flayer v. Lavington, l P. 
 Wms. 268. But the case most like the present, is Tasburgh 
 v. Echl'm, 4 Bro. Part. Ca. 142. There, the sum of 200/. 
 lent on a proviso, similar to that in the assignment of the 
 class-rights, was, merely because there was no covenant 
 for repayment, held to be a conditional purchase, and a 
 redemption denied, though the value of the estate was 9007. 
 per annum, and the lender had himself filed a bill, praying 
 a redemption or foreclosure. With this train of adju- 
 dications, therefore, in support of the appellant's title, 
 there can, it is presumed, be little doubt of a reversal. 
 
 *Van Vechten, contra. The agreement to divide the sur- 
 plus, that might be produced from the sale of the Clabcrgh 
 farm, is proved by the testimony of two witnesses. It re- 
 mains, therefore, only to show that there was a consider- 
 ation for such agreement, and that a surplus did arise. To 
 create a sufficient consideration, the mere showing the 
 lands would suffice, and Ejfener himself proves that it was 
 performed. In support of there being an actual surplus, we 
 have only to advert to the declarations of the appellant him- 
 self. When the land was struck off to him in October, 
 179O, for 340/. he acknowledged himself to be satisfied, 
 and he afterwards sells for 500/. This, then, must have 
 left a surplus, of the half of which he instantly became, 
 under the agreement, trustee for the respondent, and of 
 course, liable to account. As to the assignment of the 
 class-rights, the circumstance of its being given under the 
 pressure of an execution, merely to have a further indul- 
 gence, shows it to have been no more than a further secu- 
 rity for the original debt ; and redeemahility, of course, a 
 
 ALBANY, 
 Feb. 1805. 
 
 Bloodgowt 
 Zeily. 
 
 * 137
 
 137 CASES IN ERROR IN THE 
 
 ALBANY, necessary incident. The defeasance with which it was ac- 
 ^^ ' *^ v companied, still further elucidates this idea, and corrobo- 
 
 Bloodgood rates our position. It is a settled principle in equity, that 
 ZeiW. every contract for the securing of money is a mortgage. 
 1 Pow. on Mort. 146. Therefore, though the condition 
 of a mortgage be to redeem during the life of the mortga- 
 gor, the heir will be entitled to redemption. Kilvington v. 
 Gardner, 1 Fern. 192. Absolute conveyances, accompa- 
 nied by defeasances, in separate deeds, are, by our sta- 
 
 f Act concern- tute,f considered as mortgages, and directed to be regis- 
 tered as such. #1 Rev. Laws, 481. s. 3. The case of 
 Manlove \. Ball and Bruton, 2 Fern. 84. goes the whole 
 length of the one before the court. There, in consideration 
 of 550/. an absolute conveyance was made of a church lease 
 for three lives. The grantee executed a separate instru- 
 ment, by which he agreed, on payment of 600/. within a 
 twelve-month, to reconvey. The 600/. were not paid. Yet 
 a redemption was allowed after the expiration of near 2O 
 years, and though the defendant had twice renewed the 
 lease, on the dropping of two of the original lives. The 
 mere lapse of the day of payment never works an injury, 
 where there was an original redeemable interest. Exton v. 
 Greaves, 1 Fern. 138. Croft v. Powel, Com. 603. Even a 
 fine and non-claim for five years, creates no difference. 
 Rowellv. Walley, 1 Ch. Rep. 218. Welden v. Duke of Tork, 
 1 Fern. 132. In Stanhope v. Thatcher, Prec. Ch. 435. an 
 estate-tail created for the security of a sum of money, and 
 even the fee subsequently acquired by a recovery, were 
 held, in equity, to amount only to a mortgage, and defeasible 
 on payment of the money due. In viewing this case, it is 
 to be remembered, that redemptions are favoured, and 
 defeasible purchases discountenanced. Howard v. Har- 
 ris, 1 Fern. 191. The appellant might have treated the as- 
 signment as a mortgage. It must, then, be equally so 
 with respect to the respondent ; for it cannot be a mort- 
 gage on one side only.
 
 STATE OF NEW-YORK. 138. 
 
 Henry, in reply, insisted, that however good such an ALBANY, 
 
 .... r . , . Feb. 1805. 
 
 agreement as that to divide the surplus or the Clabergh \^~^-^^ 
 farm might have been, if assented to, it could not prevail BiwHigood 
 between the respondent and appellant ; *because the former, /.,-ii\ . 
 by refusing to reconvey, and driving the latter to the 
 necessity of receiving a sheriff's deed, had destroyed all 
 mutuality. To establish no surplus, he relied on the state- 
 ment made by his associate counsel in opening. He ad- 
 mitted the general rule as to the redeemability attached to 
 mortgages, but contended , that defeasible purchases were 
 an exception to it, as they did not rest on a borrowing 
 and lending, and the mere agreement to permit a repur- 
 chase of such an interest as a class-right, which was only 
 a chose in action, could not, he said, operate as a mort- 
 gage. 
 
 Per Curium, delivered by KENT, Ch. J. It will not be 
 requisite to recapitulate minutely the facts in the cause, but 
 I apprehend it will be sufficient to state the points that have 
 been raised for our consideration, and to applv the mate- 
 rial facts to those points, as we proceed to discuss them. 
 
 The appellant contends that the decree is erroneous ; 1st. 
 In making the proceeds of the sale of the Clabergh farm 
 any basis for an account; and, 2d. In allowing the re- 
 spondent a right of redemption as to the assignment of the 
 class-rights, for 1,400 acres of land. 
 
 1st. The accounts between the parties relative to the 
 bond and mortgage, do not appear to have been kept with 
 much regularity or precision, and it would be difficult from 
 the facts before us, to make an accurate liquidation of those 
 accounts. Nor do I think it necessary so to do, for I 
 agree with the court below, in the propriety of considering 
 the accounts relating to the mortgage as closed, and that 
 the mortgage is to be considered as satisfied. It is equally 
 needless to determine, whether the agreement to *divide * J^Q 
 
 the surplus moneys arising upon the sale of the farm (if 
 any such agreement was made) be valid and binding upon
 
 140 
 
 CASKS IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Bloodgood 
 
 v. 
 Zeily. 
 
 the parties, for I am satisfied there was no surplus moneys 
 to divide. The balance due upon the bond at the time of 
 the sale must have amounted to 500/. and upwards, the sum 
 at which the farm was afterwards sold to E/ener, and that, 
 too, after allowing as a credit, the sum specified, as the 
 consideration of the assignment of the class-rights. 
 With respect to that consideration, I think it is clear, that it 
 was not created by the advance of cash from the appellant 
 to the respondent. The answer of the respondent does 
 not pretend it was, and this must be the sum which the ap- 
 pellant, at the time of sale, admitted ought to have been 
 credited on the bond. The assignment, therefore, of the 
 class-rights, must have been taken by the appellant, as 
 equivalent to the payment of 100/. upon the bond. 
 
 This brings me to the consideration of the second point. 
 Whether the respondent be entitled to redeem ? I consider 
 the assignment of the class-rights as being intended by the 
 parties to operate as the payment of 100/. on the bond and 
 mortgage. It was not given, or accepted, absolutely as 
 cash, but as a security for the payment of so much of the 
 antecedent debt, and, therefore, I entirely agree with the 
 Chancellor, that it is not to be considered in the light of a 
 defeasible purchase, but as an additional security for a 
 part of the pre-existent debt, and to which the right of re- 
 demption was necessarily attached. I entertain a full 
 persuasion that this is a just solution ; the real truth of 
 the transaction. The internal evidence of the case is, to 
 my mind, conclusive as to the fact. I have no doubt that 
 this mode *of securing the payment of 100/. in part satis- 
 faction of the execution, was the cause why proceedings 
 under the execution, were stayed from September, 1789, 
 when the assignment was made, until September, 179O> 
 when the respondent made default in the redemption of 
 his class-rights. I am of opinion, therefore, that a right 
 of redemption most justly and equitably attaches to this 
 case.
 
 STATE OF NEW-YORK. Ui 
 
 The few cases that are to be met with, of defeasible pur- ALBANY, 
 chases, and in which the equity of redemption is said to be Feb 1805 ' 
 destroyed, after the limited time, by agreement of the par- R!, )0 <]good 
 ties, are cases in which there was a great lapse of time be- Z J;', V 
 
 tween the forfeiture and the application to redeem. Flayer 
 
 v. Lavington, 1 P. Wms. 268. Ensruorth v. Griffith, \ Bro. 
 Parl Ca. 149. Tasburgh v. Ec/ilin, 4 Bro. Parl. Ca. 142. 1 
 Po-w. on Mart. 4 ed. 169 to 184. ; and Mr. Powell admits, 
 in page 183. that the intention of the parties must be clear- 
 ly proved, or necessarily implied, otherwise they will not 
 be taken out of the operation of the general rule. The in- 
 tention of the present parties is so far from appearing to 
 make this assignment a defeasible purchase, as contradis- 
 tinguished from a collateral security for a debt, that it is 
 manifest, from a review of the case, that the assignment 
 was made to secure 100/. as part of the bond, and by that 
 means the respondent obtained the indulgence of another 
 year to meet the execution. 
 
 My opinion, therefore, is, that the decree is correct in 
 attaching the right of redemption to the interest assigned ; 
 but as the 1,400 acres have since been sold by the appel- 
 lant, and, as we must intend, to a bona fide purchaser 
 without notice, the only * question is, as to the measure of * 142 
 
 compensation which the respondent is entitled to receive. 
 
 It will be perceived, from the view I have taken of the 
 transaction, that the respondent is not entitled to redeem, 
 without paying to the appellant the 1007. with interest from 
 the date of the assignment. That sum, therefore, must 
 be deducted from the amount of his compensation. The 
 only point of any difficulty is that of settling the time at 
 which the value of the 1,400 acres is to be computed. If 
 the appellant had retained the lands till 1796, when the re- 
 spondent demanded a release of them, he would have beea 
 obliged to restore the lands, or their then value, exclusive 
 of improvements ; but he had previously sold them to a 
 third person for 500/. which he states to have been the 
 highest price which could be obtained, and that when ho
 
 ALBANY, 
 
 Feb 18(15. 
 
 Kloodgood 
 
 v. 
 Zeily. 
 
 143 
 
 CASES IN ERROR IN THE 
 
 sold them, he did not suppose the respondent had, or pre- 
 tended to have, any claim to the lands. As the respondent 
 assigns no reason why he lay by till 1796, I incline to the 
 opinion, that, under the circumstances of this case, the 
 price that the appellant procured for the lands, would form 
 the most equitable rule of computation. He appears to 
 have sold the lands, under a belief that they were absolute- 
 ly his. 
 
 My opinion accordingly is, that the appellant be decreed 
 to account to the respondent for 500/. being the sum for 
 which he scld the 1,400 acres, together with interest from 
 the time of the sale, which was on the 1st December, 1792, 
 and costs both in this court and the court below, and that 
 the appellant be allowed against that sum 100/. with in- 
 terest from the 19th of September, 1789, and that the court 
 below be directed *to execute this decree, and that the 
 decree below, be, in all other respects, reversed. 
 
 Judgment accordingly. 
 
 William and George Taylor, Appellants, against 
 Ann Delimcy, Respondent. 
 
 The surrogate ON appeal from a decree of the judge of probates, on 
 
 lias a discretion- , r ,, . r 
 
 ary power to the following facts. 
 
 John Taylor died intestate, leaving a widow, three sons, 
 George, and Charles, and three daughters, Ann, 
 
 Q * 
 
 respondent, Phcebc and Man/. The widow having re- 
 
 elect out of those 
 of the next of 
 kin to an intes- 
 tate, any one in 
 nn equal degree, 
 prifl grant to 
 
 such person, sole nounced the administration, the two daughters, Phccbe and 
 
 administration. , . , . . ' , . ... 
 
 Mary, united with their husbands in petitioning the surro- 
 gate to appoint Ann sole administratrix, she being the eldest 
 child. Against this, William entered a caveat, claiming a 
 right to be joined with her, which she denied. Whilst the 
 caveat was pending, the four other children presented to 
 the surrogate an ex parte paper, stating as objections tc.
 
 STATE OF NEW-YORK. 14S 
 
 William, 1st. That he was so much engaged in commerce, ALBANY, 
 as not to have time to attend to the estate ; 2d. That the 
 family could not, at all times, have access to him, which, 
 if he was an administrator, would be inconvenient; 3d. 
 That he was at variance -with the other branches of the " - 
 family, and his temper such as to promote discord rather 
 than harmony ; 4th. That they were persuaded, it would 
 be his object and interest, to delay a settlement of the 
 estate ; 5th. Because the law does not favour joint ad- 
 ministrations. 
 
 The surrogate, under these circumstances, decreed ad- 
 ministration to be granted, exclusively, to *Ann. From * 144 
 this, William appealed to the judge of probates, and on the 
 proceedings being transmitted, George petitioned to be uni- 
 ted with any person to whom the administration might be 
 granted. His honour, having affirmed the decree of the 
 surrogate, directed sole administration to Ann, on which 
 the case was now brought before this court. 
 
 Henry, for the appellants. This case brings up two 
 question : 1st. Whether a surrogate has a discretionary 
 right to elect, among persons in equal degree, to whom he 
 will commit administration ? 2d. Whether, admitting this 
 discretion, it has, on the present occasion, been duly exer- 
 cised ? To determine the first point, it will be necessary 
 to investigate the origin of the power, now conferred on 
 the surrogate, in granting administration ; to trace from it 
 its common law source, to the statute provisions in England, 
 and mark the diversity in them, from the act of our legisla- 
 ture on the subject. 
 
 Antecedent to parliamentary provisions, the king, in 
 cases of intestacy, as parens patrice, was entitled to the 
 goods of the deceased, in order to defray the expenses oi 
 his funeral, discharge his debts, and apply them to the 
 benefit of his wife and children. If there were none, those . 
 goods, as a branch of the royal prerogative, constituted a 
 part of his revenue, which he obtained possession of by his
 
 144 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 * 145 
 
 ministers, and, most probably, through the medium of the- 
 county courts. At length, through the influence of eccle- 
 siastical persons, the administration of intestates' effects 
 was granted to the ordinary, who, after giving one third to 
 the widow and children, was imagined to dispose of the 
 residue, or dead man's part, in pios usus, for the ^benefit 
 of his soul. The abuses, however, of the clergv, called 
 for legislative interposition, and it was by the 31 Edrv. III. 
 c. 11. enacted, that the ordinary should grant administration 
 to the " next and most lawful friends" of the deceased. 
 This was construed to mean such of the next in blood, as 
 did not labour under legal disabilities. What those were, 
 are specified in Hensloe's case, 9 Rep. S9. and Toller's Law 
 of Exec. 66. But the ingenuity of the churchmen attempt- 
 ed to narrow this right, by choosing from among those of 
 the next of kin, him who would purchase the favour, or be 
 most obsequious to them in the distribution. This power 
 of election being a doubtful right, the 21 Hen. VIII. c. 5, 
 was passed to confer it. By the words of the statute, the 
 ordinary is empowered to grant administration to the wi- 
 dow or next of kin, or both " as by the discretion of the 
 same ordinary shall be thought good. And in case, where 
 divers claim the administration, which be in equal degree 
 of kindred to the person deceased, and where any person 
 only desireth the administration, as next of kin, where, 
 indeed, divers persons be in equality of kindred, as is 
 aforesaid ; that in every such case, the ordinary to be at his 
 election and liberty to accept any one or more making re- 
 quest, where divers do require the administration." This 
 f 2 Comm. 496. statute is, by Blackstone^ termed an enlarging act. It was 
 passed to give privileges to the church, and confirm that 
 power of election, which they before used, though with 
 some degree of distrust, of nominating the most pliable of 
 the kindred, to the administration. It was a boon to the 
 
 * 146 ecclesiastical Border. It was the abuse of it which induced 
 
 * 22 & 23 Car. the statute of distributions^ to put an end to those frauds 
 n.c.10. w hich had been practised under the former laws. After
 
 STATE OF NEW-YORK. 146 
 
 this plain history of the right of election in the ordinary to ALBANY 
 exclude some and prefer others to the office of administra- ^ 
 tion, can it be argued that it was bestowed to avoid the 
 inconvenience of joint administrations ? It is not the re- 
 sult of common law principles, but the effect of positive 
 institution ; and if our act does not bestow the same dis- 
 cretion, it cannot exist. The words made use of by our 
 legislature are, that administration of the estate of any per- 
 son dying intestate, shall be granted "to the widow, or 
 next of kin of the intestate, or some of them, if they, or 
 any of them, will accept the same."t These expressions t l Rev - 
 
 , ..... 318. s. 5. 
 
 do not vest the surrogate with a discretionary power to 
 elect one of the next of kin solely, and in exclusion of 
 those who " will accept the same." The sentence, if at 
 full length, would read thus, " to die next of kin if they 
 will accept the same, to some of them, if any of them will 
 accept the same." Therefore, if all in the same degree 
 accept die administration, the surrogate must grant it ; if, 
 indeed, all do not choose to accept, then he may grant to 
 some. The law is mandatory, and does not allow of any 
 discretion. That this was the intention of those who fra- 
 med and revised it, is evident, from comparing the phraseo- 
 logy of the old act, with that of the present day. By the 
 former, the ordinary was empowered to grant administra- 
 tion " to the widow or next of kin of the intestate, or to 
 some, or one of them, -if they or any, or cither of them will 
 accept the same.":}: #No such words are to be found in $ Game's foi. ed. 
 our amended code, and it is not to be presumed they were * 147 
 
 rejected without reason. The sixth section of the act now 
 in force, corroborates our positions. For it requires all 
 the next of kin to be cited, in case any other person should 
 apply for administration. Why cite them if all were not 
 entitled ? No inconvenience can arise from the bonds re- 
 quired, because each administrator is allowed to find his 
 own separate surety. As to the second point, we surely 
 are justified in saying, though the surrogate may be entitled 
 to the discretion he claims, he has, in the instance now be-
 
 147 CASES IN ERROR IN THE 
 
 ALBANY, fore the court, abused it. Our system allows, it is truey 
 
 Feb. 1805. . . . . . 
 
 to its judges, the exercise, in some instances, or their dis- 
 cretion ; but then it must be such a one as is sound and 
 lawful, not arbitrary and capricious. Therefore, if once 
 
 duly made use of, it can never be revoked, and adminis- 
 tration granted to another ; for that would be arbitrary. 
 11 Vin. Abr. 114. pi. 10. (n). Men, and even a mercan- 
 tile character, have been passed by, to grant administration 
 to a woman, whose education and very sex must be against 
 the appointment. This last circumstance has been said, of 
 itself, to be an objection, because, " she may marry, and 
 so put herself and her goods under the power of another." 
 
 f jRiackboi-ouffh 12 Mod. 619.f Should the court be of opinion with us, 
 they will, therefore, grant the administration, as we sug- 
 gest, to all who will accept ; for, in cases of this sort, 
 when the decision appealed from is set aside, the inferior 
 tribunal is ousted of its jurisdiction, and the court which 
 reverses, shall grant administration de now. Reeve v. 
 Denmj, 11 Vin. Abr. 7G.pl. 12. 
 
 * 148 ^Harison and Van Vechten, contra. The rights of the 
 
 appellants rest entirely on our statute provisions, and it is, 
 therefore, unnecessary to travel back into the remote periods 
 
 * i Rec. Laws, of ecclesiastical abuse. Antecedent to the general repealj 
 
 of the English acts of parliament, those of Ediv. III. and 
 Hen. VIII. were in use here. When they were abrogated, 
 it was not from any view inimical to their spirit, but to 
 adopt the same principles under an act of our own. The 
 existing act of the legislature is to be expounded accord- 
 ing to the reason of the antecedent law, and never to be 
 construed to repeal, further than that reason will justify. 
 The discretion now practised by the surrogate has been 
 sanctioned by a usage of years. Nothing but a clear in- 
 tent ought, therefore, to abolish it, instead of the construc- 
 tive alteration which the counsel for the appellant has la- 
 boured. By being authorized to grant to some, the surro*- 
 gate is necessarily empowered to reiuse to bestow on al!>
 
 STATE OF NEW-YORK. 148 
 
 The \vords of the law clearly mean, that he may grant ALBA.XY, 
 administration to any, or any one of those who are next of ^ !^, 
 kin, or to any one of them who will accept the same. When Taylor 
 we look at the former law, which it was not intended to Deiancy. 
 depart from, we can easily perceive that the " any" must 
 signify any one, at his election. This power of election is 
 indispensably necessary. Persons next of kin may be un- 
 der disabilities, which would render it almost criminal in 
 the surrogate not to reject. They may be bankrupts, or 
 largely indebted to the intestate. Without a discretion, there- 
 fore, he could not do justice to the estate. But that ap- 
 pointing a woman should be an abuse of it is rather sin- 
 gular, when the legislature, in the case of a widow, direct 
 it to be given to her. If we are correct in our idea of a 
 discretion *in the surrogate, the appeal cannot be maintain- * 140 
 
 ed. From the use of discretionary powers there is none. 
 It is contrary to their nature. On applications for new 
 trials, setting aside defaults, rehearings in chancery, allow- 
 ing or directing informations in the nature of a quo war- 
 ranto, no exception can be taken, or writ of error brought. 
 They may, indeed, be subjects of criminal proceeding, by 
 indictment or impeachment, but never can be the ground- 
 work of appeal or error. The argnmentum ab inconvenient! 
 is conclusive against the right. An instance has very late- 
 ly occurred in the city of New-Tork of a death, where the 
 next of kin consisted of 150 persons, all in the same de- 
 gree. This alone is sufficient to affirm the decree below. 
 
 Pendleton, in reply. We must construe the clause in our 
 statute distributively. To the next of kin, if they will 
 accept, or some of them if they will, or any of them if 
 they will accept the same. It is a positive law, and how- 
 ever inconvenient, it is not with this, or any other court to 
 repeal it. 
 
 Per Curiam, delivered by SPENCER, J. The appellants 7 
 counsel have insisted, 1st. That under the 5th section of 
 
 R r
 
 149 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 i'eb. 1805. 
 
 Taylor 
 
 v. 
 Delancy. 
 
 * 150 
 
 the act, " relative to the court of probates, the office of sur- 
 rogate, and the granting of administrations," there is no 
 discretion vested in the surrogate, to select one of the 
 next of kin in equal degree, where they all request ad- 
 ministration, and are under no legal disability ; 2d. That 
 in this case, if such discretionary power is given by the 
 act, it has been so exercised as to require correction by this 
 court. 
 
 The only legislative provisions on this subject, are to be 
 found in the acts of the 14th of February, 1787, *and the 
 27th of March, 18C1. 'Ihe former of these statutes directs, 
 "that where any person dieth intestate, the widow, or next 
 of kin, or any of them, of the deceased person, if they, 
 or eithtr of them will accept the same, &c. shall be depu- 
 ted." The latter statute ordains, " that administration of 
 the goods, and chattels, and credits of any person dying 
 intestate, shall be granted to the widow, or next of kin of 
 the intestate, or some of them, if they, or any of them, 
 will accept the same." These acts are of the description 
 of revised laws, and if susceptible of doubt in their inter- 
 pretation, resort must be had to the law existing antece- 
 dently. By the constitution, the British statute of the 
 21st Hen. VIII. regulating the granting of administrations 
 was adopted and recognised as the law of the state. The 
 35th article of the constitution ordains, that such parts of 
 the common law of England, and of the statute law of 
 England and Great Britain, and of the acts of the legis- 
 lature of the colony, as together did form the law of the 
 said colony, on the 19th of April, 1775, should be and con- 
 tinue the law of this state, subject to such alterations and 
 provisions as the legislature should from time to time make 
 concerning the same. The statute of the 21st Hen. VIII, 
 became thereby the law of the state, and the 5th chap. 3d 
 and 4th sections of that statute, in express terms, gave to 
 the ordinary a right to accept one or more administrators 
 when there was an equality of kindred, according to his 
 discretion. The revisers of the laws in 1 787, well kneiv
 
 STATE OF NEW-YORK. 150 
 
 ihat this statute vested a discretion, and still we find no ALBAXY, 
 terms made use of negativing that discretion, or purport- 
 ing to change the law. So far from this, it appears to me 
 *that the words " or any of them," in the act of 1787, if 
 they were now to receive a construction for the first time, 
 
 151 
 
 confer a discretion on the surrogate. My opinion is found- 
 ed on this proposition, that where the law, antecedently 
 to the revision was settled, either by clear expressions in 
 the statutes, or adjudications on them, the mere change of 
 phraseology shall not be deemed or construed a change of 
 the law, unless such phraseology evidently purports an inten- 
 tion in the legislature to work a change. A contrary con- 
 struction might be productive of the most dangerous conse- 
 quences. The quaintness of expression in some of the an- 
 cient British statutes, the circumstance of there being several 
 statutes on the same subject, required, in many cases, an en- 
 tire change of language, but it has ni:ver, until now, been 
 contended, that thereby an alteration of tne law was to be 
 inferred. 
 
 If this was a case wholly depending on the statutory 
 provision, of the act of the 27th of March, 1801, (and to 
 this as a revised law, the same observations are applicable, 
 as have been made in relation to the statute of the 14th of 
 February, 1787,) I should incline to the opinion, that the 
 words, "or any of them," would vest a discretionary 
 power in the surrogate, of making an election between 
 those in equal degree. If, however, the words are 
 doubtful, arguments from inconvenience would have a de- 
 cisive and conclusive influence. Nothing could be more 
 absurd than to require the surrogates to confer the right of 
 administering on all who are next of kin, and who may 
 desire it, when their numbers, their residence, their per- 
 sonal qualifications would, in prudence, require their ex- 
 elusion. I am, therefore, clearly of opinion, *that the 
 surrogate had a discretionary power of selecting one to the 
 exclusion of others, by which I mean a sound legal dis- 
 cretion not founded in whim or caprice.
 
 152 
 
 CASES IN ERROR IN TKE 
 
 ALBANY, 
 
 As to the second point, whether the abuse of discretion 
 is a ground of relief here. I am not disposed to say, that 
 i here may not be cases, where the exercise of a discretion 
 in a:i unjust and illegal manner, would not be re-examina- 
 ble and relievable. Of this there may be a doubt, and in, 
 the case of Preston and others v. Ferrard, 2 Bro. ParL Ca. 
 179. the house of lords affirmed the Chancellor's order, on 
 the ground that the act of 2d of Anne, had conferred on 
 him a discretionary power to appoint guardians to the chil- 
 dren of Roman Catholics. Without expressing a decided 
 opinion on this point, it appears to me that the pre- 
 sent case furnishes no facts from which the court can per- 
 ceive an abuse of discretion. It is to be intended, that 
 al. decrees, solemnly pronounced, are just, until the con- 
 trary appears. The surrogate may have had good reasons 
 to guide his discretion, of which we are not conusant. 
 Neither of the parties, from any proofs in this cause, ap- 
 pear liable to any objection, except that the respondent is a 
 female ; and this has been urged as one. It is a sufficient 
 answer, to say, that the statute makes no discrimination as 
 to the sexes ; and certainly, the court cannot consider that 
 an objection, which the legislature have not. In my opi- 
 aion, the decree appealed from ought to be affirmed. 
 
 Decree of affirmance. 
 
 * 153 * Paschal N. Smith, President of the Columbian In- 
 
 surance Company, against William Bell, Joseph 
 Bell, and Samuel Watson. 
 
 To constitute a IN error, upon a bill of exceptions, tendered and sealed 
 los^ofa* shipby on tne tr * a * ^ tnis cause at tne circuit court, in the city of 
 , in which the now defendants were plaintiffs. 
 
 sureil against, 
 
 he rr.ust be injured to the amount of half her value, or more, after deducting the one-third, 
 new for old, allowed (lie underwriter ; that is, she must bo injured to the extent of three- 
 tburtiis of her value, or more.
 
 STATE OF NEW-YORK. 
 
 153 
 
 The action was on a policy of insurance on the ship ALBANY, 
 Mary-Ann, valuedt at 14,OOO dollars, " at and from Charles- ^^^ 
 ton to G/asgoru, and at and from thence to Philadelphia, or Smith 
 one other port in the United Slates." . The plaintiffs went Bell Others 
 for a technical total loss, in consequence of the vessel's 
 having been stranded on the coast of Scotland, and injured 
 to an extent which required 7,221 dollars to repair. They 
 gave in evidence a subsequent sale of the vessel at Gree- 
 nock, on account of those who might be concerned, the> 
 purchase by the firm of Archibald Campbell & Co. and her 
 reparation at an expense exceeding half her value. The 
 defendants relied on their having paid into court the sum 
 of 5, tOO dollars, contending, that as the amount of ex- 
 penditure for repairs was only 7,221 dollars, and they 
 were entitled to a deduction of one-third, new for old, 
 they were chargeable with only 4,884 dollars 32 cents, 
 which, not amounting to half the value of the vessel, could 
 not constitute a technical total loss. That, therefore, as they 
 had paid into court, 5,1OO dollars, the verdict ought to be 
 in their favour, it being the law, that the allowance* of 
 one-third, new for old, should be made, before the right 
 of recovering as for a technical total loss, on account of 
 damage sustained under the policy, could arise. 
 
 The judge, however, at nisi prius y thinking otherwise, 
 the verdict was, under his direction, given for the plain- 
 tiffs, and the case now came up on this single question ; 
 whether the underwriter on a ship is liable for a total loss, 
 when the injury she receives from the perils insured against, 
 deteriorate her more than half, without deducting the one- 
 third, new for old ; or, whether the one-third, new for old, 
 must not first be allowed the insurer, and the injury, after 
 that deduction, amount to the half her worth, or more ?f f i was not pre 
 
 The determination at nisi prins, was founded on a de- 
 cision of the supreme court, in the case of Dupmj v. United 
 
 f There is some uncertainty as to this in the printed case. The first page 
 sUtes it to be an open policy ; the second, Orstt " in and by" the poficy alu. 
 was " vled at," &t. 
 
 * 15*
 
 154 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1 805. 
 
 Smith 
 
 * 155 
 
 Insurance Company, in which, from the notes of KENT, Ch. J 
 it appears the court ruled to this effect. 
 
 Where the repairs are equal to half the value, and more, 
 
 v. 
 
 Bell 8* others, the insured have a right to abandon. The rule is general, 
 " and has no reference to the distinction of new for old. It 
 is the actual expenditure, or damage which is taken into 
 view, and on the abandonment, the insurer has all the 
 benefit of the repairs. The rule of deducting one third, 
 new for old, can be applied only in a case of partial loss. 
 Here there was a clear case for abandonment, and the 
 plaintiff must have judgment. 
 
 Per Curiam, delivered by LANSING, Chancellor. On this 
 case, only two questions are presented for the consideration 
 of the court. 1st. Whether, on a policy of insurance, on the 
 estimate of repairs of a *vessel, injured by any of the 
 perils insured against, new materials substituted for the old, 
 do not entitle the insurer to an allowance ? And if so, 2d. 
 At what period is the allowance to be admitted ? 
 
 These questions are open here. They must, in a great 
 measure, depend upon general reasoning, drawn from the 
 nature of the contract of insurance, and that reasoning may 
 be comprised in very narrow limits 
 
 The vessels employed in commercial enterprises, are of 
 various degrees of strength and durability, and more or less 
 adapted to resist the perils of the seas ; but the lowest 
 grade in which they are recognised, as subjects of insur 
 ranee, is when they are barely seaworthy. 
 
 The hull, masts, sails and rigging of a vessel may be in 
 a situation to constitute her seaworthy, and yet be much 
 inferior to what they were when they came from the hands 
 of the workmen who constructed them ; and a regular 
 gradation may easily be conceived between a vessel perfect- 
 ly new, well-built, rigged and furnished, and one that is 
 barely seaworthy. When an injury is sustained by a ves- 
 sel of the latter description, and it becomes necessary to 
 supply her old masts, timbers, sails and rigging, with new,
 
 STATE OF NEW-YORK. 155 
 
 it is evident that in all these particulars, she must, in most ALBANY, 
 instances, be placed in a better state by the repairs, than 
 she was before the injury received, the ordinary wear and 
 tear not being within the purview of the policy. Hence, 
 
 the repairs are carried to a point beyond the mere rein- 
 
 statement of the vessel, and beyond the indemnity in* 
 
 tended. # 156 
 
 *In the case of Da Costa v. Newnham,^ determined in the \2E.V .407. 
 British court of king's bench, since the revolution, the 
 usage which obtained with respect to the repairs of allow- 
 ing one-third, new for old, seems to have been acknow- 
 ledged, and it is now urged in argument, that at any rate, 
 whether or not the defendant was entitled to this allowance, 
 was a question for the jury, as it depended upon usage. 
 Butter, Justice, speaks of it as a usual allowance, and Ash- 
 hurst, J. observes, that the allowance of one-third of the 
 repairs, is the rule, where the ship is repaired and deliver- 
 ed over again to the owner, for his benefit. That case 
 arose on a technical total loss, which the insured did not 
 avail himself of, by abandoning. 1'he recovery was for an 
 average loss of upwards of eighty per cent. The ship had 
 been repaired at the instance of the insurers. They re r 
 fusing to pay for the repairs, a bottomry bond was execu- 
 ted on the vessel, in consequence of which, she was sold to 
 satisfy the debt. 
 
 It was contended that the value of one-third of the re- 
 pairs ought to be deducted, and the answer to this, which 
 appears to me conclusive, was, that the repairs, having 
 added to the value of the vessel, must have been compen- 
 sated for, in the sale, on the bottomry bond, and the owners 
 never had the ship, so they could not be the better for the 
 repairs. 
 
 From the expressions made use of by the judges who 
 decided this case, it does not appear that they relied upon 
 the usage of any particular trade ; but upon the usage of 
 trade generally ; and as there is no power on earth, to enact 
 positive regulations for the *wide extended regions of ma- #157
 
 157 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Smith 
 
 v. 
 Bell & others. 
 
 rine enterprises, general usage, established from the prin- 
 ciples of general convenience, and sanctioned by the expe- 
 rience and practice of merchants, is the only source of ge- 
 neral maritime law. 
 
 The rule that constitutes the loss of more than one-half 
 the value of the subject insured, a total loss, is a positive 
 one, originating in the convenience of having a determi- 
 nate and precise test n all cas es, which, by its universality 
 and uniformity, may render inquiries into minute objects, 
 rather calculated to perplex than to elucidate, unnecessary. 
 
 The precise difference between the value of the old and 
 new materials, must generally be difficult to ascertain. 
 That difficulty is much increased, by the estimate necessa- 
 rily required of the value of the old, at the home port, 
 and of the new, at the port of repair. It is, therefore, 
 desirable, to have some invariable standard, not calculated, 
 for that is impracticable, to meet precisely all the variety of 
 cases, which may occur, so as to render exact justice in 
 each ; but such a rule as will nearest approximate to pro- 
 ducing that effect, if generally applied. That effect, if a 
 rule respecting the subject is to obtain, it was not contend- 
 ed, might not be produced in the proportion alluded to in 
 the case of Da Costa v. Newnham. From the nature of 
 the contract of insurance, I think the allowance for repla- 
 cing the old materials with the new, is reasonable and pro- 
 per ; and if so, that, as the deduction is professedly made, 
 on the principle that the value of the subject insured, has 
 been enhanced to that amount, that deduction ought to be, 
 made, before the test of technical total loss or *not is ap- 
 plied ; for the doctrine of technical total loss is expressly 
 founded on the position that the subject insured, has been 
 deteriorated more than one-half. 
 
 lam, therefore, of opinion, that the judgment of the su- 
 preme court be reversed. 
 
 Judgment of reversal,
 
 STATE OF NEW-YORK. 158 
 
 Paschal N. Smith against Joaquim L. Steinbach. 
 
 IN error upon a judgment pronounced by the supreme A p v, c .y on 
 courtf in favour of the defendant, on a demurrer to evi- IT^** '^ * 
 dencc. ei -;' P' )rt ' .f- 
 
 laches on the 
 
 The count averred a loss under the policy from arrest commencement 
 
 nt lading the 
 and detention by the Spanish government. The testimony g<<i on board. 
 
 J A %essel seizil 
 
 to support this, and demurred to on the trial, showed an on suspicion of a 
 
 insurance on the freight of the ^til^jCatharine, then at Bar- trality is not, 
 
 celona, effected on the 23d of October, 1 800 ; a seizure of cumsuuicefu^be 
 
 the vessel by the Spanish government, in the September || eld c ?"o]f e u " 
 
 preceding, on suspicion, that "the captain had aided a tml conduct. An 
 
 abandonment is 
 
 British frigate, in cutting out, and capturing two Dutch never mo late it" 
 
 . the loss continue 
 
 vessels. An abandonment on the 30th clay ol December, total at the time 
 
 of the action 
 
 1801, between which time and September, 1 800 ,a witness, brought. A de- 
 examined in the cause, proved that opportunities from Bar- ^""(f'confesses 
 eelona to Nnv-Tork were frequent, and had occurred, the'^my'couid 
 
 Lastly, a 1 subsisting detention in July, 1802. have found from 
 
 J' J " the evidence. A 
 
 seizure by a fo- 
 reign state, of a 
 
 KENT, Ch. T. read the opinion of the supreme court as vessel in a port 
 
 fV T< n * ot lllat StatC """ 
 
 delivered by Livingston, J. Irom 2 JV. T. 1. R. *130. der a tuspwion 
 
 of a breach oi" 
 ncutraliiy, is a 
 
 Mr. President. Several objections were made to the plain- loss within the 
 
 clause in a poli- 
 
 tifF's right of recovering. 1st. It was alleged that the C y of insurance 
 
 . against the res- 
 
 voyage contemplated, while the Laiiianne was at Barcelo- traint of princes, 
 na, was different from the one insured, and that therefore * 159 
 
 the risk never commenced. The insurance being at and 
 from Barcelona, it may admit of doubt, whether, as the 
 loss happened there, the defendant would not be liable, al- 
 though a voyage to the Havanna were in contemplation. 
 But on this point of law, we gave no opinion, because it 
 was sufficiently proved, that the vessel was destined for 
 Baltimore. Thus have the jury found, in another action 
 on a policy on the ship, nor could their verdict have been 
 different, without disregarding all the testimony in the 
 
 <?. .A". 1'. T. ]i. 10'.' '
 
 159 
 
 ALBANY, 
 
 Feb. 1S05. 
 
 CASES IN ERROR IN THE 
 
 cause. The defendants themselves were awarethat this 
 finding comported with the evidence, and, accordingly, di- 
 rected their principal attack against the testimony itself j 
 for they said, 2d. That Mumford was the plaintiff's wit- 
 ness, and therefore could not be discredited by him. 
 Whether this gentleman be regarded as the witness of the 
 one or of the other party, is not very material in deciding 
 this cause : he had been examined out of court, at the in- 
 stance of the defendants, and cross-examined by the plain- 
 tiff, who produced his deposition on the trial. Perhaps 
 the best general rule in such cases would be, to consider 
 the witness, if his deposition be read, as belonging to the 
 party on whose application he was examined, without any 
 regard to the person who may finally make use of it. But 
 without deciding this point, we thought nothing was done 
 by the plaintiff to discredit Mumford, even if he had been 
 his witness. It is not every mistake which a witness may 
 make, when speaking from memory, that will discredit 
 him, *and it would be a strange rule, indeed, that a party 
 producing a witness, should not be permitted, even by the 
 witness himself, to correct a mistake which he may have 
 committed. Nothing more was done. Mumford had 
 sworn, that from certain papers, the destination of the 
 cargo, according to his recollection, appeared to be for the 
 Bavanna: after this, there could be no impropriety in 
 showing him the papers to which he alluded, or any other 
 to refresh his memory, and to enable him to correct his 
 error if he had made one. This was no imputation on his 
 character ; it neither rendered him infamous, nor unworthy 
 of credit as to the other point to which he had deposed: It 
 discovered in the witness a laudable promptitude to rectify 
 a mistake, into which an imperfect recollection had betray- 
 ed him, and thus added to, rather than detracted from, the 
 weight of his testimony. 3d. The exhibits H. and C. be- 
 ing only copies, should not, it was said, have been produ- 
 ced. If no allusion had been made to these papers by
 
 STATE OF NEW-YORK. 16O 
 
 Mumford, they could not have been produced, to show the ALBANY, 
 real object of this voyage, but he had already testified that 
 he had made out certain claims against the Spanish govern- 
 ment, for the Catharine and her cargo, which stated the 
 
 vessel to be bound directly for the West Indies; these pa- 
 
 pers, he added, were lodged in the consulate office at Bar- 
 celona. Having sworn thus far from memory, the plaintiff 
 had a right to refresh his recollection, by the showing him 
 copies of the claims referred to ; on inspection, he might 
 probably be able to determine .whether they were true co- 
 pies or not, and certainly if he believed them true, they 
 would furnish better evidence *of what the originals con- 
 tained, than any parol account of their contents, which 
 was the only way in which the defendants had attempted 
 to prove them. There is no reason to say the originals 
 were in the plaintiff's possession. They remained in a pub- 
 lic office in Spain : and this kind of inferior proof was 
 rendered proper by the defendants' own conduct. They 
 had not only examined the witness, as to the contents of 
 these papers, but gave the plaintiff every reason to believe, 
 that nothing would be required of him, but proof that the 
 property was American. 4th. The abandonment, it was 
 said, was too late. The Catharine was seized in Septem- 
 ber, 1800, and not abandoned until fifteen months thereaf- 
 ter. It has already been decided by the supreme court, in 
 Earl v. Shaw, that an abandonment may be made at any 
 time after the accident ; provided, at the date of the aban- 
 donment, the loss still continue total. This being the case 
 here, the abandonment was in season. 5th. It is contended, 
 that Mr. Mumford was mistaken or surprised on his cross- 
 examination, and that, therefore, a new trial should be 
 had. For this purpose, his affidavit was produced, taken 
 nine months after the trial, in which he stated, that the 
 captions of the exhibits B. and C. were not shown to him, 
 to the best of his knowledge and belief, and endeavoured 
 to explain why they were made as they appeared ; to vit, 
 
 toj>revent endangering the insurance. This explanation
 
 161 CASES IN ERROR IN THE 
 
 ALR VNY, came too late ; a witness under examination may explain 
 
 i'Y-li. 180.). . . . ,. . 1111 i 
 
 \ _^- ^s and correct himself, but it would be dangerous and impro- 
 
 Siuith per to receive any elucidation from him, after the trial, and 
 Steinbach. especially after the lapse of so many months : besides, the 
 ^ fi2 " defendants were apprized of his deposition, long ^before the 
 trial, and were without excuse, for not calling on him then, 
 to make such explanations as might have been deemed im- 
 portant. 6<h. But it was said there had been a discovery of 
 new evidence, and for that reason there should be another 
 trial. It was also said, that if a new trial had been grant- 
 ed, there were t\vo witnesses who were not known to the 
 defendants at the time of the trial, who could testify as to 
 the destination of the Catharine. This was the fact princi- 
 pally controverted on the former trial, and we were applied 
 to for another, merely because all the witnesses who knew 
 tltisnogn-ou.ul something of the matter, had not been examined.! Every 
 pant a new tri- one must perceive the inconvenience and delay which would 
 SiSdupmH arise from granting new trials, upon the discovery of new 
 jSjrtli W 1 testimony, or other witnesses to the same fact. It often 
 suppose! ground ^ a pens, that neither party knows all the persons who may 
 
 of nicompeten- 
 
 cy, where ano- | DC acquainted with some of the circumstances relating to 
 
 ther witness who . 
 
 was called, cs- the point in controversy ; ir a suggestion, then, ot the pre- 
 
 Sm^fect/^nd sent kind be listened to, a second, if not a third and a fourth 
 
 *ff e upon r a trial, may always be had : there may be many persons yet 
 
 collateral pumt un i cnown lo t he defendants, who may be material witnesses 
 
 on which the ' . * 
 
 verdict turned. j n t ' n ' ls cause , and this may continue to be the case after a 
 
 Echeards \. E- 
 
 vans, 3 East, dozen trials. Cases may occur in which, if great doubts 
 
 exist, as to the first decision, it may be proper, on the dis- 
 covery of -further witnesses, even to the same fact, to open 
 the cause for a second discussion ; but this is not one of 
 them. The principal fact here was clearly proved, and if 
 Louis and Byrnes had both been examined, it is very un- 
 certain whether the result would not have been the same. 
 
 * 16 *Pcnd'etcn, for the plaintiff. The effect of a demurrer 
 
 to evidence is, that the demurrant, admitting all the facts 
 which appear in evidence on the trial, still says they.are
 
 STATE OF NEW-YORK. 163 
 
 not sufficient to entitle the party who produces them, to ALB v\Y, 
 
 . . Feb. IS05. 
 
 recover or maintain the issue. 1 he proceeding is founded 
 on this principle, that where facts are agreed on, there is 
 no occasion for the determination of a jury ; for, all that 
 is then necessary, is to pronounce the law on them. But 
 when the facts are not agreed to, then they go to a jury to 
 determine their existence. In this case the facts stated are 
 acknowledged. The court is now to decide whether every 
 fact necessary to entitle to a recovery for the loss claimed, 
 has been proved. If not, we think ourselves justified in 
 saying there must be a reversal ; because it is, in all actions, 
 the duty of a plaintiff to make good his claim, it being 
 never required of a defendant, to show negatively, that 
 there is no title to a recovery. An insured, then, ought 
 to establish, that the subject matter was at the risk of the 
 underwriter ; that it was in such a situation, as to be with- 
 in the terms of the policy, and the nature of the loss such 
 as will authorize a resort to the assurer. On the present 
 occasion, it should have been made to appear, not only that 
 the Catharine was at Barcelona, but bound to Baltimore, on 
 the voyage insured, and that under these circumstances, 
 she was seized. To this, the pi-oof is inadequate. For, 
 though the being at Barcelona, and the seizure are esta- 
 blished, there is a defect in the testimony, as to the port of 
 destination ; unless, indeed, the court may infer that the 
 Catharine was to go on the- voyage described, ^merely from # 164 
 
 her being at the port from whence insured. This can 
 never be a matter of inference, for it is laid down, that 
 " the loss must appear to have happened during the con- 
 tinuance of the risk." Marsh. 615. In WooUridge v. 
 Boy dell, Doug. 16. the words were "at and from Mary- 
 land to Cadiz, 1 '' but because it was not shown that the ves- 
 sel was bound on the voyage insured, it was held that the 
 policy did not attach, and the plaintiff not entitled to re- 
 cover. The same principle is found in Murdoch \. Potts, 
 Marsh. 230. The mere being at a port does not compre- 
 hend sufficient proof that the vessel was there for the pur-
 
 164 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Smith 
 
 T. 
 Stcinbach. 
 
 * 16$ 
 
 pose of pursuing the voyage described. Though a demur- 
 rer to evidence admits the facts proved, it does not warrant 
 the presumption of a fact not in evidence. If such may be 
 inferred, the party demurred to should specify them, and 
 is not bound to join in demurrer till they be admitted or 
 proved. If, however, such fact be material for the deter- 
 mination of the cause, as it neither admitted nor proved, 
 but only inferred, there should be a venire de novo directed* 
 This, however, is not that on which we principally rely. 
 We contend, that as the plaintiff founds his claim on a 
 seizure upon suspicion of an act of his agent, which, if 
 true, would amount to a violation of neutrality, and vacate 
 the policy, he was bound also to establish that there was 
 no ground for the suspicion. Not having done so, and 
 joining in demurrer, he has admitted the cause of suspicion 
 to be well founded, and cannot, therefore, recover. We 
 insist also, that the rule adopted in the supreme court of 
 allowing the underwriter at any period to bring his action, 
 and recover *as for a total loss, if the loss then continue 
 total, is erroneous. The principle of insurance law is, 
 that the assured, when informed of an event by which he 
 is entitled to abandon, ought to elect to do so within a rea- 
 sonable time. If within such time this be not done, it is 
 to be presumed that he has elected not to abandon, and the 
 underwriter will be liable only to an average loss. In 
 Marshall, 508. the rule on this subject is accurately stated. 
 He says, " that as soon as the insured receives advice of 
 a total loss, he must make his election, whether he will 
 abandon or not. If he determine to abandon, he must 
 give the underwriters notice of this, within a reasonable tlme^ 
 after the intelligence arrives ; and any unnecessary delay in 
 giving this notice, will amount to a waiver of his right to 
 abandon ; for unless the owner does some act, signifying 
 his intention to abandon, it will be only a partial loss, 
 whatever may be the nature of the case, or the extent of 
 the damage." This doctrine is justified by reason, as well 
 as authority. Abandonment is the act by which the as-
 
 STATE OF NEW-YORK* 165 
 
 sured transfers to the underwriter the chance of recover- ALBANY, 
 
 . r , . . Feb. I8u5. 
 
 ing what is saved, and calls upon him as it the subject 
 sured had been totally lost. For where there has been an 
 
 actual total loss, there can be no abandonment. For it is 
 
 founded on a supposition that something has been saved, 
 or may be so. It is, however, an extreme remedy, and 
 allowable only in extreme cases. If the property be in 
 such a situation, that it may be recovered, the equity of 
 the law says, we will not oblige the assured to wait the 
 event, but we will permit him to call on his underwriter, 
 who shall take the chance of recovery. Hence, it is op- 
 tional, whether *an insured will abandon or not. " The 
 insured is not obliged to abandon in any case. He has an 
 election." Per Lord Mansfield, Marsh. 494.f But his \ Jn Hamilton*. 
 
 . Jr27laZ, 
 
 election is a positive act, of which notice must be given, m 
 order to place the underwriter in a situation to look after 
 the property. What act is to be done to evince the inten- 
 tion of not abandoning. None that is overt. It can be 
 manifested only by being passive. Therefore, abstaining 
 from abandoning, must be an election not to abandon. 
 Proceeding in attempts to recover the property, is evidence 
 that an abandonment of it was never contemplated, and an 
 indemnity for the expenses incurred, all that was looked 
 forward to. Fourteen months passed without any notice 
 taken of the accident. After such a lapse of time, it is to 
 be presumed, that the party has elected to run, himself, 
 the chance of recovery. If not, and no limitation be put 
 to the period within which an insured must elect, it can 
 never be known to an underwriter, when his responsibility 
 ceases ; it may last for ever. The convenience of the thing, 
 therefore, requires, that abandonments should be allowed 
 only within a reasonable time, and that should be limited 
 by the period within which communication is in general re- 
 ceived, unless it be shown that none has arrived. The 
 contrary doctrine opens a door to fraud, and affords an 
 opportunity to speculate on the underwriter. Under 
 particular clause in our policies, the underwriter is to pay
 
 166 CASES IN ERROR IN THE 
 
 ALBANY, all charges incurred in defending the subject of his policy^ 
 t -1 ' j^r Is the assured to go on for any length of time, involving 
 Smith his insurer to any amount of expenses, and if the property 
 Steinbach. De recovered, take it to *himself, if not, claim for a total 
 loss, and demand payment of the expenses also ? Surely, 
 where the whole of the subscription is to be required, the 
 insurer ought to have a discretion allowed him, to pay the 
 amount, and relinquish the pursuit. By such a system, 
 the assured cannot suffer, though, by rejecting it, the as- 
 surer may. The underwriter has a right to insist on be- 
 ing put in a situation to act for himself, and not to have 
 forced upon him an agent, whose interest it is to hazard 
 every kind of expenditure, because, whatever may be the 
 result, he cannot lose, and may gain. It is inequitable, 
 that the underwritten should, at his pleasure, wait the ter- 
 mination of the accident, before he abandons, and yet the 
 underwriter not be able to act for himself, but at the per- 
 mission of the insured. He ought to be obliged to elect to 
 abandon or not, before the consequences of the event are 
 known, and not to be at liberty, without notice, to saddle 
 the insurer with expenses and charges. No country leaves 
 the period of abandonment totally in the breast of the un- 
 derwritten. By many nations, the time within which to be 
 made is expressly limited. But to leave it without .bounds 
 is held to be law in this state alone. The English decisions 
 are in conformity to the principles I have advanced. In 
 Mitchell v. Edie, Marsh. 510. Mr. Justice Ashhurst says, 
 " the insured are bound to decide and signify their election 
 to the underwriters the first opportunity ; for though the 
 person who takes upon him to act on the occasion, for the 
 benefit of all concerned, is not the agent of the insured, 
 yet, if, upon receiving notice of the loss, they do not elect 
 to abandon, they adopt the acts of such person, and make 
 
 ib. ^ / o 
 
 r Wwoorf v kim tne i r agent." In another *case,f the having sent a 
 
 Henkkell, Park letter of attorney to receive and remit the proceeds of a 
 
 cargo sold, and lying in a court of admiralty, was held such 
 
 an intermeddling as to destroy the right to abandon, for,
 
 STATE OF NEW- YORK. 16 
 
 said Lord Kenyan, " the insured must make his election ALBANY, 
 speedily, and put the underwriter in a situation to do what s^-J-x.^ 
 is necessary for the preservation of ihe property, whether Smith 
 sold or unsold." By the 42d art. of the marine, it is re- Stei.Ibach. 
 quired to give instant notification of the loss, with a de- ' 
 
 claration of having elected to abandon, when the period al- 
 lowed so to do, has expired. 2 Emer. ISO. From this, it 
 appears, that the principle we contend for, is acknowledged 
 even by the law of France^ which does not exact an im- 
 mediate abandonment. 
 
 Hoffman and Harison, contra. A demurrer to evidence 
 not only admits every fact which has been offered in testi- 
 mony, but every deduction which, from those facts, a jury 
 might make. This is consonant to the reason of the thing. 
 For, as by such a proceeding, the case is taken from the 
 jury to the bench, the court is substituted in their place, 
 and may make every inference they might draw. By 
 adopting this mode of procedure, a party cannot deprive 
 his adversary of any advantages a jury trial would afford. 
 He cdhtedes that they shall all be his, if the evidence be 
 determined sufficient to maintain the issue. After the ap- 
 plicability and legal qualities of the testimony are allowed, 
 the court pronounces the judgment in conformity to what 
 they think a jury would have been warranted in determin- 
 ing. These principles have been settled in the English 
 courts, by the case of Cocksedge v. Fanshaw, Doug. 119. 
 and in ours, by that of Livingston v. Shutz* We contend 
 #that the circumstances of a vessel being at a port, taking # 169 
 
 in her cargo there, and a policy effected on the freight to 
 arise on that cargo, from the port where she was, to an- 
 other, are sufficient to warrant an inference, that she was 
 destined for the port to which insured. But we are told, 
 that having shown a seizure on suspicion, we ought to have 
 proved that suspicion to have been groundless, or it must 
 be presumed it was well founded. This is contrary to 
 even- principle of law, and repugnant to the nature of the 
 
 T c
 
 CASES IN ERROR IN THE 
 
 AT.BANY, proceedings now before the court. 1st. As a matter of de, 
 Feb. .805. fence? it ought to b e made appear by the now plamutt. 
 
 As the demurrer admits the fact of the seizure, it is to re- 
 quest a presumption against the plaintiff's own admission. 
 
 quest a jvivou 
 
 He who demurs to evidence, asks nothing for himself, b 
 denies that his opponent has shown any right. For a per- 
 son tendering a demurrer, no presumption, therefore, can 
 be made, as he concedes all presumptions are to be on the 
 side of his adversary. That the right of abandonment is 
 taken away, unless exercised immediately after notice of the 
 loss, is not, as a universal rule, warranted by the cases 
 cited. They establish no more than that, when the restora- 
 tion of the property, or any other circumstance, shows the 
 loss is no longer total, the assured cannot, by an abandon- 
 ment then made, convert that which is at the time a partial 
 into a total loss, merely because it had once technically 
 subsisted. Thus, in Mitchell v. Edie, the vessel, after b 
 ing captured and plundered, was restored, but, from the 
 taking away of her rigging, obliged to make for a port of 
 necessity, where the proceeds of the cargo were in the 
 hands of a part owner for near three years, and the under- 
 * 170 writers *called on merely because he had failed. 
 
 court held this a partial loss, not to be turn- d into a total 
 one bv abandonment. So in Allu'ood v. Htnkctt, the vessel 
 was captured, recaptured, restored on salvage, and the mo- 
 ney in the admiralty. The total loss had ceased, and, 
 therefore, there could be no abandonment. On this prm- 
 fVoi , 31. ciple, the determination of Church v. Bedimt 6? Kmberhfy 
 proceeded. If, indeed, the underwriter has paid the 
 he then becomes a purchaser of the subject insured, and 
 though it be afterwards recovered, it will belong to himv 
 Da Costa v. Firth, 4 Burr. 1966. The consequence will 
 be the same, though it be, in fact, restored at the time the 
 amount of the subscription is paid. It is a fallacy to say 
 that the underwriter is injured by allowing of an abandon- 
 ment, at any time, whilst the loss continues total, 
 assured is, by the policy, warranted in prosecuting for tht
 
 STATE OF NEW-YORK. 
 
 recovery of the property. If he succeeds, it will go in ALBANY, 
 diminution of the loss. If he do not, he has acted only 
 according to his authority, and as the loss is then total, the 
 underwriter is of course liable for the full amount. To 
 adopt the rule contended for by the now plaintiff, would " 
 render almost every technical, a total loss. It would de- 
 prive the insurer of the agency of the insured, and oblige 
 him always to send a special deputy to take care of his 
 concerns. The property being originally that of the as- 
 sured, he has a right to calculate when the abandonment is 
 to be made. 
 
 Pendleton, in reply, referred to Gibson and Johnson v. 
 Hunter ,2H. Black. 187. in support of his positions respect- 
 ing a demurrer to evidence, and insisted, "*that the spes ^ 171 
 recuperandi was a part of the insurer's right, and ought to 
 be abandoned to him. 
 
 Per Ctiriam, delivered by LANSING, Chancellor. On 
 this case, three points have been made. 1st. Whether 
 there is proof that the freight is within the policy ? 2d. 
 Whether the insurer is bound to respond for the loss oc- 
 casioned by a seizure, on suspicion of a breach ot neutrali- 
 ty ? 3d. Whether the abandonment was not too late to 
 found any right or recovery on ? 
 
 The plaintiff, by the demurrer to evidence, has admit- 
 ted every fact which the jury could have found from the 
 
 evidence.! -rCocl.-aedge v. 
 
 . i j r i r<inhtnf .Baity . 
 
 From the demurrer, it appears, that tne defendant to 127 . j^in^ton 
 maintain his issue, had proved that De C evert, on whose ^" r ' illlUis 
 account the insurance was made, was owner of the vessel, 
 the freight of which was insured by the policy ; that he was 
 an American citizen, and that the ship was purchased in 
 the United States of an American citizen. It is iurther 
 stated, that in the policy she was desc r bed as the Ame i can 
 ship Catharine, and that the defendant had produced the 
 necessary preliminary proofs before the policy was rtaJ.
 
 m 
 
 ALBANY, 
 
 Feb. 1S05. 
 
 Smith 
 
 v. 
 Steinbach. 
 
 172 
 
 2 Marsh. 615. 
 Tonga v. Watts 
 2Str. 1251. 
 
 CASES IN ERROR IN THE 
 
 These preliminary proofs, among others, from the obvious 
 import of the terms, must have been the evidence that the 
 policy attached to the ship Catharine, and, of course, she 
 was an American bottom. This has not been a point in 
 controversy, but it is necessary to advert to it, in making 
 certain deductions, which, I think, must determine the 
 first point. 
 
 The policy, on freight, was on a voyage " at and from 
 Barcelona to Baltimore." The ship was seized in the har- 
 bour of Barcelona. 
 
 *It is laid down as a rule, that if an insurance be " at 
 and from" a place, the risk commences from the time of 
 subscribing the policy, if the ship is at home. If abroad, 
 from the first moment of her arrival at the place specified. 
 
 An insurance on freight, commences at the time the 
 goods are first on board. It has been held that an intention 
 to deviate will not avoid the policy, and that a risk, once 
 commenced, cannot be apportioned. 
 
 If these principles are correct, the policy attached on the 
 freight the instant the goods were embarked at Barcelona^ 
 which, as related to the ship, was a foreign port. What- 
 ever change in the destination of the vessel might have 
 been contemplated, the risk having commenced, the in- 
 surer was entitled to the premium, and if the insured had, 
 by changing the destination of the voyage, diminished the 
 risk, by a deviation not warranted by the policy, he would 
 have lost his money, without any correspondent benefit. 
 
 Until the destination of the vessel was actually altered, 
 she was covered by the policy, and as she was at the port 
 of departure, unless the contrary appears, it is to be pre- 
 sumed she was there for the purpose of pursuing her voy- 
 age to Baltimore. 
 
 As to the second point, I know of no instance in which 
 bare suspicion has been considered as proof of breach of 
 neutrality. It is the every day's practice of belligerents to 
 capture and send into port, neutral vessels navigating the 
 ocean, on the slightest suspicion, which the rapacity of
 
 STATE OF NEW-YORK. 
 
 the captors converts into confirmation so vehement as to ALBANY 
 
 amount to positive proof ; but an allegation of the convic- * ^ '^ 5 - 
 
 tion by *the captors, of the truth of such suspicion, can Smith 
 
 form no ground for judicial decision, or to infer a breach Stei.Ibach. 
 
 of neutral duties. There is no other difference between this " 
 
 3f. !*. 
 
 case and that of stopping a vessel on the seas, on suspicion, 
 but that here, the seizure was in port, by an agent, more in- 
 timately connected with the government than those agents 
 who search and send in vessels. But the suspicions of 
 neither can be a guide to the tribunals of our country, (who 
 only receive foreign judicial acts as prima facie evidence,) 
 unless they have been proved to be well founded. 
 
 Within the intent of the policy, this is a mere act of 
 power, a restraint by a foreign prince. 
 
 1 he doctrine of abandonment is only adapted to the 
 case of a partial loss, connected with a total one, by the 
 operation of law. It is expressly founded on the consider- 
 ation that the subject insured, though not totally annihila- 
 ted, for then, nothing would be left for abandonment, is so 
 much deteriorated by the perils insured against, as not to 
 make it worth holding to the insured. It is a doctrine cal- 
 culated to distinguish between average and technical total 
 loss, as far as respects the insurer, not to create new du- 
 ties, or impose new burthens on him, but to protect him 
 from practices to which he might be exposed, by specula- 
 tions on the state of the markets, or other contingencies, 
 which may influence the value of the property insured. 
 
 The English doctrine on this subject laid down by Lord 
 Mansfield, in the case of Mitchell v. Edie,\ and afterwards ii&.&E. 608 
 adopted and confirmed by Lord Kent/on, in the case of 
 Alhvood v. Henkell^. and which appears to me well founded, $ Park, 172. 
 is, that the insured must, *in the first instance, make their * J 7 
 
 election whether they will abandon or not. 
 
 In the case of Hamilton and Mendez$ Lord Mansfield $2 Burr. 1195. 
 observes, " the plaintiff's demand is for an indemnity ; the 
 action, then, must be founded on the nature of his dam- 
 nification, as it really is at the time of the action brought.
 
 CASES IN ERROR IN THE 
 
 ALBANY, It is repugnant upon a contract of indemnity to recover aa 
 
 Feb. 1805. foratotaiioss, when the final event has decided, that the 
 
 Smith damnification, in truth, is an average, perhaps no loss at 
 
 Steinbach. all." So this would be equally repugnant to the nature of 
 
 the contract, to apply the doctrine of average loss, to a case 
 
 in which the final event, as far as it has any bearing on the 
 point in controversy between the parties, has determined it 
 a real total loss. For the ship is still detained, and, if she 
 was liberated, the freight which was the object of insu- 
 rance, is as completely lost, as if she had been sunk in the 
 ocean. 
 
 Whence, then, is the estimate of average loss to be ta- 
 ken ? and what would the abandonment transfer, from the 
 
 * 2 Dal 280. insured to the insurer ?t 
 
 Cumberland v. j t - g certa i n iy no t the interest of the insured to delay an 
 
 dH'Cd'f' T 1 
 
 abandonment. By doing so, he incurs many disadvantages. 
 His rights on the policy are suspended, and any event 
 which may restore the property insured, however much in- 
 jured, places him in a situation to recover only an average 
 
 loss. 
 
 Upon the whole, I am of opinion that the insured, when 
 the loss on the policy happened, had it in his election to 
 abandon. That by his delay he has waived his right of 
 abandoning, so far as might operate to convert an ave- 
 rage, into a total loss, and has left the insurer the chance 
 of enjoying the advantage ^arising from restoration, inter- 
 mediate the time in which he waived it, and bringing his 
 action, so as to preclude him from recovering for a techni- 
 cal total loss. But as the loss has continued really total, 
 that the defendant had a right to recover, as for such total 
 loss. I am, therefore, clearly of opinion, that the judg- 
 ment of the supreme court is correct, and that it ought tp 
 be affirmed. 
 
 Judgment of affirmance,,
 
 STATE OF NEW-YORK. 
 
 Le Roy and others, Appellants, against Servis and 
 others, Respondents. 
 
 THE facts of this case are stated in vol. 1. p. 1. of the 
 introductory cases, but as the opinion there is that of Mr. 
 Gold only, the decision of the court is now given. 
 
 BENSON, J. I premise, that in a case otherwise properly 
 cognisable in a court of law, if the plaintiff, for want of a 
 writing^ the evidence of his right, is obliged to sue in equi- 
 ty, it is a rule there that he must verify on oath, the alle- 
 gation that the writing is lost, or in the possession of the 
 defendant ; that this rule is in the same reason with the 
 rule in the courts of law, in cases of pleas to the juris- 
 diction, foreign pleas, and claims of cognisance, and is in- 
 tended only to prevent a change or transfer of jurisdiction, 
 without any cause shown as arising from facts proved on 
 'oath, and doth not diminish or deprive the defendant of any 
 'real advantage of defence; so, that the proof, although not 
 absolutely ^positive and conclusive, but less precise and * 1T6 
 
 full, will suffice. That in order to confine the rule to its 
 were object, if the bill is for discovery only, or if it is for 
 a general discovery of all writings in the possession of the 
 defendant, -whatsoever they may be, and where it is to be 
 supposed the plaintiff hath no particular knowledge of 
 them, but yet that some writings of some kind, in 
 which he is interested, and relative to the property he seeks 
 to recover, do exist and are in the possession of the de- 
 fendant, that in these cases, the allegation of the loss of 
 the papers, or that they are in the possession of the defend- 
 ant, need not be on oath. That until some decisions in 
 England, within ten years past, it hath always been held, 
 as it is expressed in the books, that " a demurrer being bad 
 in part, must be overruled," for it is not like a plea 
 " which may be allowed in part ; but a demurrer void in 
 fart is void in toto, and cannot be separated," w that a
 
 CASES IN ERROR IN THE 
 ALBANY, general demurrer to the whole bill, if there is any part of 
 
 Feb. 1805. , . . . , , , r i 
 
 v>x _ v ^^ / the bill to which the defendant ought to put in an answer, 
 Lc Hoy the demurrer being entire, must be overruled/' u that a 
 Servis. demurrer if defective in part, is bad for the whole, for it 
 cannot be split" That although the decisions of the En- 
 glish courts are deservedly of great authority, yet the rea- 
 sons in these alluded to, " the supposed hardship on a de- 
 fendant, if he cannot avoid the expense of taking a copy 
 of a long bill, if there chances to be a right to a discovery," 
 and thereby making " the only question to be, whether the 
 plaintiff should be put to the expense of a bill, or the de- 
 fendant of a new demurrer," are not convincing ; for if 
 #177 the defendant, instead of a general demurrer to *the 
 
 whole bill will demur particularly to each separate or dis- 
 tinct part or matter, to which he may suppose " he ought 
 not to put in an answer," the demurrer may be overruled 
 as to some parts or matters, and allowed as to others ; and 
 the defendant, among other costs, may be decreed the ex- 
 pense of so much of the copy of the bill, to which the de- 
 murrer was allowed ; so, that there will not, in that re- 
 spect, be any hardship left on him. It may be also stated, 
 that there are other means, and within the powers of the 
 court, to correct the mischief, if it prevails, of filing bills, 
 of an undue length, containing matters to which the defend- 
 ant ought not to answer, preferably to merely turning the 
 plaintiff' round, and subjecting him to the delay and ex- 
 pense of a new bill. The conclusion, therefore, is, that 
 there hath not appeared to us sufficient reason to change an* 
 established and approved practice ; and, consequently, if 
 there are any matters in the bill, to which the defendants 
 ought to have put in an answer, the demurrer being general, 
 and to the whole bill, must be overruled in the whole. This 
 leads to an examination of the several causes of demurrer. 
 First cause of demurrer. The defendants object to the 
 proof as arising from the affidavit of the complainant, Boon; 
 1st. That there is only the oath of one, whereas there ought 
 to be an oath from every of the complainants ; 2dly. That
 
 STATE OF NEW-YORK. m 
 
 the oath ought not only to state the destruction of the sup- ALRAXY, 
 
 ... , , , , , Feb. iH05. 
 
 posed writings, but also that the deponents have them not \^^ ^ fc / 
 in their own possession ; and, 3dly. That the deponent doth Le R T 
 not swear from his ozvn knowledge, but from the informa- Servis. 
 tion of others. Here I state that the proof of *the allega- " ~ 
 tion of the loss of the writing is restricted to the oath of 
 the party, in exclusion of the oath of a stranger ; and, 
 therefore, if the circumstances of the case are such, as 
 that it is to be presumed the party cannot know the facts 
 from his own knowledge, he must then, from necessity, be 
 admitted to testify from the credib'e information, or in 
 other words, from the hearsay of others ; that, whenever 
 the law admits hearsay testimony, the fact is then as com- 
 petently thereby proved and established, as if the person 
 giving testimony was to testify from his own knowledge ; 
 that, whenever a person swears from the credible informa- 
 tion of others, it not only implies that he hath inquired to 
 an extent, and in a manner, to produce a rational belief 
 that the fact is as he testifies it to be, but it also excludes 
 the supposition that he hath any reason even to suspect it 
 to be otherwise ; that a distinction is to be taken between 
 the cases, where the writing is so lout, only, as that it can- 
 not for the present be found, yet is supposed still to exist, 
 and the cases where the writing is wholly destroyed, and, 
 therefore, supposed not to exist ; and that, although in 
 some of the former cases, it may be proper, in order to 
 guard against evasion, to require the party to swear also, 
 that he hath not himself the writing in his possession, yet, 
 that in the latter cases, it would be altogether a useless ac- 
 cumulation of prcof ; it would be to require proof of an- 
 other proposition of fact, which follows as a necessary logi- 
 cal consequence from one already proved. Assuming it, 
 therefore, and which, I think, cannot be questioned, that 
 the present is one of the cases in which proof from the in- 
 formation, or hearsay of others, is to be received, then the 
 fact of the destruction *of the supposed conveyances from * 179 
 
 the original patentees to Sir William Johmon, is duly and 
 
 V u
 
 ALBANY, competently proved ; and, consequently, the affidavit of 
 v^ ^v^s^ the complainant, Boon, alone is sufficient, so that the first 
 Le Roy cause ot demurrer fails. 
 Set-vis. Second cause of demurrer. It must be admitted, that 
 
 "~~ there cannot be a more sound or salutary principle than the 
 
 one on which this cause of demurrer proceeds ; that a court 
 of equity should always withhold its aid and countenance 
 from a suitor, whose conduct appears in any part such as 
 a conscience rightly informed, cannot approve : but the 
 principle is not applicable to the present case. The sup- 
 posed illegality of the agreement between the original pa- 
 tentees and Sir William Johnson, consists in its being in 
 contravention of the instruction from the king to the gover- 
 nor, restraining the patents for lands to quantities not ex- 
 ceeding 1,000 acres to each patentee. The futility of this 
 regulation was soon discerned, and the instruction was, for 
 not much less, if any, than half a century before the patent 
 mentioned in the bill issued, considered altogether as a 
 dead letter, and the compliance with it a mere matter of 
 form. But, even conceding that the legality of an agree- 
 ment, similar to the one supposed to have taken place be- 
 tween the patentees and Sir William Johnson, might be 
 made a question, yet that could only be the case where the 
 agreement was before the Indian purchase ; because, im- 
 mediately on the purchase, the king, in whose name these 
 purchases were always made, became trustee for .the per- 
 sons to whose use they were made, and the trust, possibly 
 on artificially legal principles, might have been limited to a 
 * 180 ^quantity not exceeding the rate of 1,OOO acres to each 
 
 person. The several cestui que trusts, however, had an 
 equitable interest in their respective shares, which they 
 could legally assign, and agree to vest the title at law in the 
 assignees, on the issuing of the patent ; and, as it doth not 
 appear when the agreement in the present instance was 
 made, in respect to whether before or after the Indian pur- 
 chase, the illegality of it cannot come under consideration 
 on the defendants' demurrer. It was a matter of which
 
 STATE OF NEW-YORK. ISO 
 
 they could avail themselves by plea only, with the requisite ALBANY, 
 
 . . . ., . , ... Feb. 1805. 
 
 averments supplying the uncertainty or the bill, as to the \**-v>^/ 
 time when the agreement was made. 
 
 Third cause of demurrer. The answer which has been 
 given to this cause of demurrer is, that it was not requisite 
 for the defendants, in answering the bill, to declare, either 
 that there was an adverse possession, or if there was, then 
 that the defendants knew it ; but, that it would have been 
 sufficient if they had simpl) 7 admitted that their vendors 
 were not, at the time of purchase by them, the defendants, 
 in possession ; because, whether the possession was vacant, 
 or whether it was adversely held by others, and if the latter, 
 whether the defendants knew it, which ever might have 
 been the fact, was wholly immaterial. This answer, it 
 must be owned, is far from being unsatisfactory ; at the same 
 time, the principle that a man is not held to accuse himself, 
 is so estimable, that we cannot be too cautious in admitting 
 distinctions or qualifications of it. Therefore, and es- 
 pecially as the discovery sought for in this instance, is of 
 a fact altogether useless in the complainants' *case, I 
 should have supposed it more safe, if a particular demurrer 
 had been put in to that part of the bill, to have allowed it, 
 and ordered the allegation and interrogatory which the de- 
 murrer supposes to be exceptionable, to be struck out of 
 the bill. 
 
 Three last causes of demurrer. I shall consider these 
 causes together, for I am not persuaded they might not all 
 have been shown under the last, the general cause of de- 
 murrer, they being essentially the same, amounting to a 
 denial that the court ought to grant a relief, supposing all 
 the allegations in the bill to be confessed, which is only 
 saying in other words, there Is a want of equity. I here 
 remark, that it is ordinarily premature wholly to dismiss 
 a bill on a demurrer for this general cause, and so, as it 
 were, at the threshold, unless the complainant's case is, 
 from his own showing, radically such that no discovery or 
 proof can possibly make it a proper subject of equitable
 
 181 CASES IN ERROR IN THE 
 
 ALBANY, jurisdiction. Such was the late case of Munro and others, 
 
 Feb. iS(>5. appellants, v. Allaire, respondent, decided in this court, 
 
 Le Roy where the complainant came to have a purchase of lands 
 
 Ser'vis perfected and confirmed to him, the supposed sale being 
 
 made by trustees under a will, and he being one, and not 
 alleging himself also a cestui que trust, one of the legatees 
 to whom the money arising from the sale was to be paid, 
 and that he, although a trustee, was obliged to purchase, 
 in order to avoid the loss to himself as a cestui que trust, by 
 a sale at a less price : for it is to be remarked, that the de- 
 fendant doth not forego or waive a single advantage as to 
 the merits, or the point, whether the complainant hath 
 equity by not demurring. He may equally insist on the 
 
 * 188 same *matters, by way of answer, which he might have 
 
 done by demurrer, and if he should even omit them in 
 the answer, he may still avail himself of them in argument 
 on the final hearing of the cause ; my opinion, therefore, 
 is, that the bill ought to have been retained, and that the 
 court of chancery should have reserved itself on the ques- 
 tion, whether the complainants were entitled to any, or 
 what relief, until all the proofs, either as arising from the 
 answers of the defendants, or otherwise, had come in ; and, 
 consequently, that the several decrees allowing the respec- 
 tive demurrers of the respondents, and dismissing the ap- 
 pellants' bill, be reversed. The respondents have not only 
 put in separate demurrers, but they have also proceeded 
 separately to decrees. How far, or by v\ hat means, a court 
 of chancery ought to restrain and regulate the right of de- 
 fendants to sever in their defence, so as to prevent them 
 from availing themselves of it solely to vex the complain- 
 ants, are matters in which I forbear from an opinion in my 
 place in this court, because it is unnecessary : We can 
 only declare and establish what shall be the consequences of 
 an unnecessary severance, if there should afterwards be an 
 appeal, and a judgment of reversal for the complainants. 
 This may, in some measure, prevent the abuse alluded to. 
 My opinion, therefore, further is, that each respective re-
 
 STATE OF NEW-YORK. 1 82 
 
 spondent in the present appeal, be dt- creed to pay the appel- ALBANY 
 
 lants for their costs on the appeal, a sum to the same x ^!^. l ^ -/ 
 
 amount, which would have been decreed to be paid by them Le Uoy 
 
 all jointly, if they had joined in demurrer in the court Servis. 
 
 below. " - 
 
 *DECREED.f # 183 
 
 f Uth March, 
 
 1798. 
 
 ON hearing counsel on this appeal, it is adjudged, or- 
 dered and decreed by this court, that the several decrees of 
 the court of chancery therein complained of, allowing the 
 separate demurrers of the respondents respectively, to the 
 bill of complaint of the appellants, against the respondents, 
 and the other defendants in the bill named, and that the 
 said bill, as it respected each of the respondents, should 
 be dismissed, be reversed; and further, that the re- 
 spondents severally pay to the appellants, the sum of 30 
 dollars for their costs on this appeal, in respect to each re- 
 spective decree so reversed, and that the cause be remitted 
 back to the said court of chancery, and that there, such 
 further proceedings shall be thereupon had, as well for ex- 
 ecution of this judgment, prder and decree, as otherwise, 
 as shall be agreeable to equity and justice. 
 
 Peter Jay Munro, Benjamin Griffen, Isaac Sniffin, 
 and Mary Palmer, the younger, Appellants, against 
 Peter Allaire, Respondent. 
 
 PETER ALLAIRE, cf Marmaroncck, in the county A purchase by 
 
 an executor who 
 
 of Westchester* the respondent in this cause, filed his bill has a power to 
 
 sell for the be- 
 
 of complaint, some time in the year one thousand seven nefit of a third 
 
 . , person, from his 
 
 hundred and ninety-five, against the above named appel- <<?/, que trust 
 
 n n i i f IS not fo vou red 
 
 lants, and therein stated, that Benjamin Calmer, late ot in equity, and 
 
 bill by liim fora 
 specific perfor- 
 mance cannot be maintained, but it seems that a purchase by a tustee, who |S also a ccttui que 
 trust, may, if to sa ve the property from loss, be sustained.
 
 183 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Allaire. 
 
 184 
 
 1&5 
 
 Marmaroneck aforesaid, being seised and possessed of cer- 
 tain real *and personal estate in the said bill mentioned, 
 executed his last will and testament, in due form of law, and 
 thereby directed his executors to sell and dispose of his es- 
 tate, real and personal, within one year after his decease, to 
 pay all his just debts, and funeral charges, and as to the 
 remainder and residue of the moneys arising from the said 
 sale, of his real and personal estate, he gave and bequeath- 
 ed unto his son, Thomas Palmer, eighty pounds, to be put 
 out at interest by his executors, until he attained the age of 
 twenty-one years ; that the interest thereof should be paid 
 annually to his wife, and should his son die before he at- 
 tained the age of twenty-one years, he gave the said sum 
 of eighty pounds to his said wife, Mary Palmer, one of 
 the appellants, and devised all the residue and remainder 
 of his estate, both real and personal (that might come in- 
 to the hands of his executors) unto her, her heirs, execu- 
 tors and assigns for ever, to do with as she should think 
 meet ; and appointed his said wife executrix, and the said 
 Benjamin Griffen, and the said Peter Allaire, executors of 
 the said will. 
 
 The bill further stated, that the said Benjamin Palmer 
 died without altering or revoking his will ; that the appel- 
 lant Benjamin Griffen and the said Peter Allaire, proved the 
 same ; that the appellant, Mary Palmer, refused to prove the 
 will; or intermeddle with the said estate, as she was notable 
 to read or write ; that soon after this, the appellant, Isaac Sntf- 
 jin, wanted to purchase her right in the said estate, and offer- 
 ed for it four hundred and fifty pounds ; that the appellant, 
 Benjamin Griffen, advised the taking of that sum ; that the 
 said Mary Palmer *was willing to take that price, if no 
 more could be obtained ; that the said Peter Allaire was de- 
 sirous of purchasing; that a long treaty for that purpose 
 took place, in which Judge Tompkins was consulted as the 
 friend of the said Mary Palmer ; the proceedings on which 
 consultation the said Peter Allaire stated by his bill, were 
 fairly conducted on his part ; that articles for the said pur- 
 
 4
 
 STATE OF NEW-YORK. 185 
 
 chase, at the price of six hundred pounds, were executed ALBANY, 
 
 by the said Peter Allaire, and the said Mary Palmer, and \^^^^ 
 
 afterwards, the following conveyance was made to him, by Munro ami 
 her, of all her right, title and interest in the estate of her v . * 
 
 said husband ; she promising to give a better conveyance, 
 
 if that should be found defective. 
 
 The indenture set forth, that Manj Palmer, for and in 
 consideration of six hundred pounds, remised, released, 
 and for ever quitclaimed, and by these presents, made on 
 this occasion, " did remise, release, and for ever quitclaim, 
 unto the said Peter Allaire, and to his heirs and assigns, 
 all her right, title, interest, claim, dower, or title of dower 
 whatsoever, which she the said Mary Palmer now has, 
 may, might, should, or of right ought to have, or claim 
 of, in, or out of all and every, the messuage, lands, tene- 
 ments, and hereditaments, goods and chattels, which were 
 belonging to the said Benjamin Palmer, the younger, her 
 late husband, which were devised to him, by the last will 
 and testament of Benjamin Palmer, the elder, and Mary 
 Palmer, deceased, excepting the sum of eighty pounds," 
 before mentioned, left as aforesaid, to Thomas Palmer, 
 with remainder to Mary, his mother, " and all manner of 
 action and actions, writ or * writs of dower, whatsoever, * 18& 
 
 so as neither she the said Mary Palmer, nor any other per- 
 son for her, or in her name, any manner of dower, or writ 
 of action of dower, or any right or title of dower, of, or 
 in the said messuage, lands, tenements and hereditaments, 
 or of, or in any part or parcel thereof, (except as before ex- 
 cepted,) at any time hereafter, shall, or may have claim, 
 or prosecute against the said Peter Allaire, his heirs or as- 
 signs. 
 
 The said bill further stated, that he, Peter Allaire, had 
 executed a bond and mortgage to the said Mary Pali 
 conditioned for the payment of three hundred and nv, 
 pounds, part of the .said purchase-money; that the testa- 
 tor's debts were emanated at two hundred. pounds, to dis- 
 charge which, and pay M>:ry Palmer the overplus, (If any,)
 
 186 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Allaire. 
 
 * 187 
 
 CASES IN ERROR IN THE 
 
 and also for the securing the said sum of eighty pounds, and 
 the interest thereof, he the said Peter Allaire delivered 
 another o< ligation to the said Mary ; that she gave him a 
 bond to refund, if the debts should prove greater than what 
 they were estimated at, and together with the appellant, 
 the said Benjamin Griffin, promised to execute a deed in 
 trust for him, of the testator's property. 
 
 That he the said Peter Allaire had advertised for the 
 creditors of the testator to bring in their accounts to him, 
 and had paid several, particularly to the appellant Benja- 
 min Griffen, several accounts, which had been be tore paid by 
 the said Benjamin Griffey and that the price of six hundred 
 pounds was the full value of the said real and personal estate. 
 *The bill further stated, in substance, that the appel- 
 lants, Isaac Sniffin and Peter Jay Munro, having notice of 
 the premises, had procured a subsequent conveyance for 
 the said real and personal estate from the said Benjamin 
 Griffen and Mary Palmer, who qualified herself as an ex- 
 ecutrix for that purpose. That the appellants, Peter Jay 
 Munro and Isaac Sniffin, or one of them, indemnified her 
 for such conveyance. That the said Peter Jay Munro had 
 possessed himself of a great part of the real and personal 
 estate of the testator, and refused to account for the per- 
 sonal estate to the said Peter Allaire, or to let him into the 
 possession of the real estate. The bill, therefore, prayed, 
 that the said Peter Jay Munro might account for such part 
 of the personal estate of the said Benjamin Palmer as had 
 come to his hands ; for a specific performance of the agree- 
 ment made between the said Peter Allaire and Mary Pal- 
 mer ; to receive a more perfect assurance and conveyance 
 of the estate of the said Benjamin Palmer, deceased, and 
 to receive to such other and further relief as the nature of 
 his case might require. 
 
 To this bill the appellants, Isaac Sntffin and Mary Pal- 
 mer, filed their general demurrer for want of equity as 
 against them. The appellant, Benjamin Griffen, also de- 
 murred for the same reason, to so much as respected the
 
 STATE OF NEW-YORK. 
 
 real estate of the testator, or demanded any relief against 
 him relating thereto; answering, nevertheless, that he 
 never had agreed to convey the said real estate to the said 
 Peter Allaire; and that the saLd Peter Allaire never paid 
 any of the testator's debts, e?icept some trifles, amounting 
 to about 2/. 6s. which were discharged with *money 
 received by the said Peter Allaire, from the sale of a part 
 of the personal estate of the testator. The appellant, Peter 
 jay Munro, also demurred for the same cause, to so much 
 of the said bill as respected the said real estate ; but 
 answered, that he had never possessed himself of any part 
 of the personal estate of the testator, nor taken any con- 
 veyance or assignment of the same. 
 
 Upon these several demurrers the cause came on to be. 
 argued in the said court of chancery, when his honour the 
 Chancellor was pleased to direct and order, that the demur- 
 rers should be overruled, and that the appellants should an- 
 swer fully to the said bill ; from which orders and directions 
 the appellants severally appealed. 
 
 1st. Because the said Peter Allaire as a trustee and ex- 
 ecutor, could not be a purchaser under the testator's will, 
 of the said real or personal estate, nor was the said Mary 
 Palmer, at the time of making the said pretended sale, in 
 capacity to do any act which could affect the real estate of 
 the said testator. 
 
 2d. Because the other executors named in the said will, 
 could never give a valid conveyance for the same to the 
 said Peter Allaire. 
 
 3d. Because the testator's creditors did not appear to 
 have been satisfied, nor his son's annuity paid ; but on the 
 contrary, according to the said Peter Allaire's own show- 
 ing, neither the one nor the other had been done ; neither 
 had any of the said creditors, nor had the said legatee con- 
 sented to the said pretended sale to the said Peter Allaire, 
 to or look to him, alone, for their demands. 
 
 4th. Because the heir of the said testator was not a party 
 of the said bilL 
 
 ALBANY, 
 
 Feb. 1S05. 
 
 Allaire. 
 
 * 188
 
 ALBANY, 
 
 Feb. lbU5. 
 
 Allaire. 
 
 * 190 
 
 CASES IN ERROR IN THE 
 
 *5th. Because, as to the testator's personal estate, there 
 was no charge that the same had come to the hands of the 
 said Benjamin Griffen, Mary Palmer, or Isaac Sntffin, nor 
 was any account thereof requested from any of them. And 
 the said Peter Jay Munro had, by answer, fully cleared 
 himself of any concern with the same, even if the said 
 Peter Allaire had a right to command an account of it. 
 
 6th. Because, as the said Benjamin Gri/en denied any 
 promise to the said Peter Allaire for that purpose, he could 
 not be bound to execute a conveyance to him. 
 
 7th. Because, as the bill was framed, the scope thereof 
 against all the defendants therein, was a specific perform- 
 ance and confirmation of the said Peter Allaire '$ title, which 
 the appellants could not give, and he had no right to de- 
 mand. And the general prayer of relief at the conclusion 
 of the bill, could not operate so as to depart from the ge- 
 neral purview of the statement of his case. 
 
 The respondent referred himself to the case made by the 
 appellants, and the pleadings filed in the court of chancery, 
 and humbly insisted, that the orders and directions appeal- 
 ed from should be affirmed for the following reasons : 
 
 1st. Because the said Benjamin Palmer having, by his 
 said will, given onl> a naked authority to his executors to 
 sell his real and personal estates, in order to pay all his just 
 debts and funeral expenses, and a legacy to his son Thomas 
 Palmer, and having bequeathed the residue of his estate to 
 the said Mary Palmer, there was no necessity for the 
 executors to *sell the real estate at all ; provided, the said 
 debts and legacy were paid. 
 
 2d. Because Mary Palmer, being the residuary devisee 
 and legatee, could sell her interest under the will, to the 
 said Peter Allaire, or to any other person. 
 
 3d. Because the said Peter Allaire would not be con- 
 sidered as a trustee for the said Mary Palmer, until a sale 
 by him, and the executors of the said real estate, and even 
 then, he might take from her a release of her interest to" 
 the property which had or might come to his hands.
 
 STATE OF NEW-YORK. 190 
 
 4th. Because it is not necessary that the other executors 
 in the will should join in the conveyance with the said Mary 
 Palmer to the said Peter Allaire, the bill only praying a 
 
 specific performance of her agreement with the said Peter 
 
 Allaire. 
 
 Allaire. 
 
 5th. Because the said Mary Palmer was guilty of a 
 fraud, in selling her interest in the estate, to Isaac Sniffin, 
 perhaps, too, for a smaller sum, after she had already 
 agreed to sell it to the said Peter Allaire, who had paid her 
 for the same. 
 
 6th. Because it appears that the said Peter Allaire had re- 
 tained in his hands moneys sufficient to pay the creditors 
 and the legacy of the testator's son ; and the decree below 
 might have been so framed, if necessary, as to compel him 
 to satisfy those demands before the said Mary Palmer had 
 perfected her title. 
 
 7th. Because the consent of the creditors and the testa- 
 tor's son was not necessary to the sale of Alary Palmer's 
 interest in the estate, inasmuch as they could not be in- 
 jured by it, the said debts and legacy *remaining a charge # 191 
 upon the land, notwithstanding such alienation by the said 
 Mary Palmer. 
 
 8th. Because the. whole residuary estate^ being given to 
 the said Mary Palmer, it was unnecessary to make the heir 
 at law a party. If the bill was defective in that respect, it 
 might be cause for a special, not a general demurrer; be- 
 sides, the Chancellor could, in any subsequent stage of the 
 cause, have ordered the heir at law, if he had judged it 
 necessary, to be brought before the court. 
 
 9th. Because, there being a general prayer for relisf, any 
 remedy suited to the respondent's case might have been 
 afforded. For instance, the court might have ordered the 
 bond and mortgage given by Allaire to Mary Palmer to 
 be delivered up to be cancelled, or it might have ordered 
 the said Peter Jay Munro to join the said Mary in perfect- 
 ing the respondent's title, or it might have ordered the 
 deeds to the said Isaac Sniffin and Peter Jay Mw.ro, to be
 
 191 CASES IN ERROR IN THE 
 
 ALBANY, cancelled, and awarded, if necessary, a perpetual injunc- 
 
 1805. . . ... 
 
 tion to the executors against selling. 
 
 10th. Because, if the said bill does not charge the said 
 Benjamin Griffin, Mary Palmer, or Isaac Sniffin, with re- 
 ceiving any of the testator's personal estate, such allegation 
 was unnecessary, or if the bill be defective here, it was 
 sufficiently complete in other respects, not to be dismissed 
 on a general demurrer. 
 
 BENSON, J. This is an appeal from the orders of the 
 court of chancery, overruling the several demurrers of the 
 appellants to the respondent's bill. 
 
 The intent of the respondent's bill in the court of chan- 
 192 eery is, that he may have a specific performance of *his 
 
 agreement with the appellant, Mary Palmer, whereby she 
 bound herself to convey to him, by good and sufficient con- 
 veyances in the law, all her estate, right, title and interest 
 whatever, to the estate of her late husband, and that he 
 may receive a more perfect assurance and conveyance of 
 the said estate. 
 
 To that end, the other appellants are also brought into 
 court, .either as confederates with her, or as subsequent 
 purchasers from her with notice. Several questions have 
 been raised and argued by the counsel on both sides. An 
 opinion by the court on each of these questions would be 
 unnecessary. It is, therefore, to be foreborne, it being 
 sufficient for a decision against the respondent, that he had, 
 at any time, as a trustee, a power over the property so 
 agreed to be conveyed, and whether this property existed 
 in the shape, either of money or of land, makes no dif- 
 ference. The demurrers by the appellants, therefore, were 
 well taken, it being a principle that a trustee can never be a 
 purchaser t and, I assume it as not requiring proof, that 
 this principle must be admitted, not only as established by 
 adjudication, but also as founded in indispensable necessi- 
 ty, to prevent that great inlet of fraud, and those dangerous 
 consequences which would ensue, if trustees might them-
 
 STATE OF NEW-YORK. 
 
 192 
 
 others 
 
 v. 
 Allaire. 
 
 * 193 
 
 selves become purchasers, or if they were not, in every re- ALBANY, 
 spect, kept within compass. Although it may, however, ^1^_ 
 seem hard, that the trustee should be the only person of all Munro and 
 mankind who may not purchase ; yet, for the very obvious 
 consequences, it is proper the rule should be strictly pursu- _ 
 ed, and not in the least relaxed. *Therefore, far from 
 discerning the respondent's case as an exception, supposing 
 the rule to be only general and not universal, I would re- 
 mark, that notwithstanding the averment in the bill, that 
 Mary Palmer fully understood the agreement and convey, 
 ance, and, independent of the circumstance that she was 
 not able to read or write, whoever will merely look at the 
 conveyance, which is set forth at large in the bill, will in- 
 stantly perceive that the parties, or other persons who are 
 named in the bill, as friends or agents in the transaction, 
 did not know what she had by the agreemen% agreed to 
 convey ; whether an estate in the land, or her eventual in- 
 terest in the money to arise by the sale of the land ; or io 
 what manner, or to what extent these acts were susceptible 
 of effect, or even whether they were not altogether nugato- 
 ry. The conduct of the parties, and every other person 
 having any other agency in a bargain so made, without due 
 knowledge or advertisement, is, to say the least of it, in- 
 discreet, irregular, unfit, and certainly to be discountenan- 
 ced. I am, therefore, satisfied of the justness of this prin- 
 ciple, that a court of equity ought never to old a party to 
 have the bargain enforced or perfected, with intent that 
 any profit or advantage should be taken by it ; the inter- 
 position of the court, if any, should be only to avoid or re- 
 lieve against a loss or damage. 
 
 The principle, as quoted from the adjudications, is in 
 terms without qualification or exception. A trustee can 
 never be a purchaser, &c. and without some explanation, I 
 may, possibly, be considered as understanding it in its ap- 
 parently absolute sense. I will, therefore, briefly mention 
 that the cases where the suit is against the trustee to set 
 aside a purchase, *he having procured the requisite formal 
 
 194
 
 194 CASES IN ERROR IN THE 
 
 ALBANY, legal title, are to be distinguished from those where the 
 ieb. 1805. gu j t j s |^ ^j m to e fl- ectuate a p urc hase, either by having the 
 
 Munro and thing purchased, decreed to him specifically, or by having 
 01 v 618 the means decreed to him, whereB_ he may recover at law. 
 That in the latter case, it appears to me, that the rule is to 
 apply as unlimitedly as it is expressed; but that in the 
 former case, a court of equity will not always interfere as 
 of course ; for, if the cestui que trusts will agree to allow 
 the purchase, it may be allowed without fear from the 
 precedent ; and that it is not, in every instance, indispensa- 
 ble that all the cestui que trusts should agree to waive the 
 implied fraud ; it may be sufficient for a majority, or such 
 other number or proportion of them to agree, as that, ac- 
 cording to the circumstances of the case, it may be pre- 
 sumed there was no fraud in fact. It only remains to be 
 noticed, that if the agreement and conveyance are to be 
 without effect, Mary Palmer ought not to retain the bond 
 and mortgage against the respondent. She is, neverthe- 
 less, entitled to hold them until he shall make her an offer 
 to relinquish the agreement, and to deliver up the convey- 
 ance he now holds against her to be cancelled. It is not 
 possible for the respondent to allege an offer to iliat pur- 
 pose, and to conform the prayer of his bill and his petition 
 to it, in consequence of any answer which the appellants 
 could be compelled to make to the bill, and it is a rule that 
 every decree must be according to the form of the petition ; 
 so that if the respondent is to be relieved against the bond 
 and mortgage, he must proceed de novo, and as he shall be 
 
 advised. 
 
 My opinion is, that the order appealed from be re- 
 versed. 
 
 * J2 5 March, *DECREE. Whereupon,t the court thereupon do order, 
 
 179G - ' adjudge and decree, that the orders therein complained of 
 
 be reversed, and that the demurrers of the appellants to 
 
 the respondent's bill stand allowed. That the respondent 
 
 pay to the appellants their costs in respect to the said ap-
 
 STATE OF NEW-YORK. 
 
 peal ; that the respondent's bill, as to the appellants, Isaac 
 
 Sniffin and Mary Palmer, the younger, be dismissed with 
 
 costs ; that the respondent pay to the appellants, Peter Jay otlie ,,' s 
 
 Munro and Benjamin Griffin, their costs in respect of their 
 
 demurrers ; and that the court of chancery give all neces- 
 
 sary directions for carrying this judgment into execution. 
 
 And it is further ordered, that in respect of such matter 
 in the respondent's bill, to which the appellants, Peter Jaij 
 'Munro and Benjamin Griffin, have answered, the cause be 
 remitted to the court of chancery, there to be proceeded 
 in as between the respondent and the said Peter Jay Munro 
 and Benjamin Griffin, as shall be just. 
 
 Judgment of reversal. 
 
 (SUPREME COURT, 1796.) 
 
 Lewis against Burr. 
 THIS was an action of asswnpsit, determined by the jhe 4th 
 
 is a public holi- 
 COUrt. day, a note or 
 
 The suit was by the plaintiff as endorsee, against the de- jg, 
 fendant as endorsor of a promissory note, made by Roger Jg 
 Enos to him, dated the first of June, one thousand seven of ike month. 
 hundred and ninety-five, for three thousand five hundred 
 dollars, payable thirty days after date. Plea, the ge- 
 neral issue. 
 
 *T he special verdict finding the note and the endorse- * 196 
 
 ment of it by the defendant to the plaintiff, and then the 
 following facts, was as follows : "that on the third day of 
 July, in the year aforesaid, the said three thousand five 
 hundred dollars, in the said note mentioned, or any part 
 thereof, being no ways paid, the said Francis Lewis, by his 
 agent, Solomon M. Cohen, made diligent inquiry and search 
 for the aaid Roger EMS, in the said city and county of
 
 196 
 
 ALBANY, New- York, and especially at his usual place of abode in the 
 
 ^e. MJS^ sa ^j c -^ to t ^ e intent to request him to pay to the said 
 
 Lewis Francis Lewis, the said three thousand five hundred dol- 
 
 \ f 
 
 Burr. brs, in the said note contained, according to the tenor of 
 the same, but the said Roger Enos was not then to be found, 
 being absent from the said city and county, in parts to the 
 jurors unknown ; that the said Roger Enos continued absent 
 from the said city and county thenceforth, until after the 
 fourth day of July, in the year aforesaid ; that the said 
 Francis Lewis, not finding the said Roger Enos, to make 
 the said request, did, on the said third day of July, in the 
 year aforesaid, by his agent aforesaid, deliver to the said 
 Aaron Burr, a paper writing, subscribed with the proper 
 hand-writing of his said agent, in the words and figures 
 following, to wit : 
 
 "New-York, 3d July, 1795. 
 
 " SIR As General Enos is not in town, and his note 
 with your endorsement for 3,5OO dollars, is payable to- 
 morrow, the 4th instant, the holder desired me to give 
 you this notice, that he looks to you for payment of the 
 same ; and I undertake this to prevent a protest ; General 
 Enos is expected daily, when he will have cash sufficient to 
 discharge the same, as I *am credibly informed ; 1 hope 
 my conduct in this business will meet with your approba- 
 tion ; which will be very pleasing to 
 Sir, 
 
 Your most obedient servant, 
 
 SOLOMON MYERS COHEN." 
 
 "And the jurors aforesaid upon their oath aforesaid, 
 further say, that the 4th day of July in each year, is the 
 anniversary clay of the declaration of the independence of 
 these United States of America, and for that reason is in 
 practice, though not by law, generally observed by the citi- 
 zens of this state of New-York, as a public festival ; and, 
 also, ^hat some time in the month of May, in the year of 
 our lord 1784, upon the institution of the bank of New- 
 York, which does no business on any fourth day of July t
 
 STATE OF NEW- YORK. 197 
 
 it became, and since continually has been, and still is, a gene- ALBANY, 
 ral practice and usage in the said city of New-York, for 
 the holder of a promissory note made by one person and 
 endorsed by another, if the same become payable, allowing 
 three days of grace, on the 4th day of July, in any year, - 
 to demand payment from the maker of such note, of the 
 sum therein mentioned, on the 3d day of the same July, 
 and if he refuse to pay the same, or if he cannot be found, 
 to the end that payment may be demanded of him, and if 
 the said holder shall be minded to look to the said endor- 
 ser for payment of the said note ; then, forthwith, that is 
 to say, on the same 3d day of July, to give notice to the 
 said endorser, of such refusal to pay the sum mentioned, 
 in the said note, or that the maker thereof cannot be 
 found, to the end that payment may be demanded of him, 
 and also, that it is the intention of the said holder to look 
 to the said endorser *for the payment of the said sum. But * 198 
 
 whether," &c. 
 
 Per Curiam, by BENSON, J. By our statute of the 27th 
 March, 1794, " promissory notes are made assignable and 
 endorsable over; and an action may be maintained on 
 them, as in cases of inland bills of exchange." 
 
 The reference to bills of exchange is contained in the 
 English statute, of the 3d and 4th Anne; but having been 
 omitted in the colonial statute of 1773, it was also omitted 
 in the statute of 1788, in our revised code ; the omission, 
 therefore, in the statute of 1788, can be accounted for. 
 But whether it was in the first instance designed or acci- 
 dental in the statute of 1773, cannot be ascertained. It, 
 however, occasioned the statute of 1794, which, it is known, 
 was intended, and has been received and practised on in the 
 community, as a provision, in addition or amendment of 
 the statute of 1788, to give days of grace to promissory 
 notes ; hence it is, that they are now considered as enti- 
 tled to this incident, by law. The law, however, does 
 not create the incident ; it existed before, as appertaining to 
 
 Y V
 
 9$ CASES IN ERROR IN THE 
 
 ALBANY, bills of exchange, and the law can only be adjudged as 
 
 Feb. 1805. - , ,. . , ~ 
 
 *^~v~>^ constructively extending it to promissory notes : it however 
 Lewis existed by force of custom only ; to know, therefore, what 
 B Jr r the incident is, we still resort to custom. 
 
 Days of grace, as a general incident to bills of exchange, 
 are by almost universal custom ; the number of days being 
 different in different places, according to their respective 
 laws and customs. In England the number is three, and 
 wholly by custom. 
 
 There, also, if the last of the three days happens to be 
 
 * 199 a ^ a y on wn i c h either the law or custom hath ^established 
 
 " that no money is to be paid," then the number is to be 
 restricted to two. This is also not only wholly by custom, 
 but is repugnant to the analogy of a rule of municipal 
 law, by which, if an act is to be done on a day, which 
 happens to be a Sunday, or any other day on which it could 
 not be done, without transgressing the law, that then, in- 
 stead of the day before, it must be done on the day after ; 
 so that the regulation of restricting the period of respite in 
 favour of the creditor, preferably to enlarging it in favour 
 of the debtor, if it had been questioned in its commence- 
 ment, I should conceive, ought to have been arrested by 
 the courts of justice, not as inconvenient or injurious in 
 itself, but as repugnant to the rule of law in analogous 
 cases ; it having, however, been sanctioned by custom, it 
 was, therefore, judicially " approved ;" comuctudo altera 
 lex. 
 
 I assume it, that the custom, as it existed in England at 
 the time of our revolution, was deemed, in fact, to be the 
 custom among us, and entitled to prevail. In addition to 
 the custom, as it then existed, the special verdict finds a 
 continued custom from the month of May, 1784, hitherto 
 for another day besides Sunday, &c. when the restriction 
 of the number of days of grace is to take place, namely, 
 the anniversary of our independence. The question, there- 
 tore, between the parties is, whether the custom is not, in 
 this particular, also equally entitled to prevail ? with re-
 
 STATE OF NEW-YORK. 199 
 
 spect to which, I would briefly state that, whenever a prac- ALBANY, 
 
 r \ t, C * i ^ 805. 
 
 tice, usage or custom hath obtained, tor a Length ot ne, ^r^r^^ 
 so as that it may be presumed to be generally known ; that Lewi* 
 then, all contracts to which it may be applicable, shall be Burr, 
 interpreted *and governed by it. This principle is not ' - 
 new : we practise on it daily. Where the contract is not 
 special or explicit, so as to exclude construction, the in- 
 quiry always is, what is usual ? Lest I may be misunder- 
 stood, I would mention, that I mean such practices, usages, 
 or customs only, as may consist with law ; that I decide 
 only on their force or authority, admitting the object of 
 them to be lawful. 
 
 I am of opinion, that the note in question is to be ad- 
 judged as having fallen due on the 3d day of July, the 
 second day of grace, and, consequently, that the plaintiff 
 is entitled to recover. 
 
 ^SUPREME COURT.) 
 Cortelyou against Lansing, Administrator of Antill. 
 
 THIS was an action of assumpsit, under the following o n the deposit 
 circumstances. On the 29th of April, 1786, Antill deposit- 
 ed with the defendant a depreciation note, taking from 
 
 him a receipt in these words ; Received of E. Antill, as J 
 
 a deposit, to remain in my hands, his depreciation note, P^^^JJJ 
 
 dated 1st January, 1781, No. 26. said to be for the value paw nor ; if the 
 
 J i i r j pawnee sell the 
 
 of 2 629 dollars and 48 cents, which note is to be delivered ple ,|g e before 
 up upon the payment of 60O dollars, with lawful interest, JJJJ^ fc. 1 ^ 
 lent and advanced bv me to the said E. A. on the 24th of g* 1 * 
 September, 1783, or upon giving such other security as P^ ^ th. 
 will be acceptable for the whole, or such part as may be ^^^ 
 found due upon a future settlement. ^VSu 
 
 On the 1st of January, 1785, the defendant received te ; i( , t r of the ta 
 on account of the GOO dollars, 125 dollars, and on the 9th *
 
 200 
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Cortelyou 
 v. 
 
 Lansing. 
 
 201 
 
 202 
 
 October , 1788, he sold the certificate for 625 dollars 
 being the highest market price that could *be obtained for 
 the same, leaving a balance of 39 dollars and 62 cents due 
 to him on that day. 
 
 In 1791 or 1792 Antill died, and administration being 
 granted to the plaintiff, he, in 1799, went to the house of 
 the defendant for the purpose of demanding the certificate, 
 but in consequence of the defendant's incapacity to attend 
 to business from mental derangement, he could not be seen. 
 There was no evidence that the plaintiff had any money at 
 the time to tender to the defendant. 
 
 At the trial, the court charged the jury on this evidence, 
 that the demand of damages was a question of law, but 
 that the plaintiff was entitled to recover ; and that the only 
 rule of damage was the value of the certificate in 1799, to- 
 gether with interest from that time. The jury found ac* 
 cordingly 5 subject to the opinion of the court on the above 
 case. 
 
 Per Curiam, delivered by KENT, J. The points relied 
 on by the defendant are, 
 
 1. That he had a right to dispose of the certificate. 
 
 2. That the pledge had become absolute by the death of 
 the pawnor. 
 
 3. That a tender of the money was requisite before 
 suit. 
 
 4. That the rule of damages was subject to the discretion 
 of the jury, 
 
 The two first questions raised in this case, respect the 
 rights of the parties over the depreciation note thus depo- 
 sited with the defendant ; the one claiming a right to re- 
 deem, and the other to sell it ; each reciprocally denying 
 the other's pretensions. But the *books involve the in* 
 quirer in considerable doubt and difficulty in the discussion 
 of these questions, nor do the English courts appear to 
 have defined and settled them with their usual accuracy and 
 precision.
 
 STATE OF NEW-YORK. 202 
 
 The note in question came under the strict definition of ALBANY, 
 
 , f , L -L^ Feb. 1805. 
 
 .4 pledge.t It was delivered to the defendant with a right \^^^j 
 
 to detain as a security for his debt, but the legal property Corteiyou 
 
 did not pass, as it does in the case of a mortgage, with a lading. 
 
 condition of a defeasance. The general ownership remain- ^ Dig Hb 18 
 
 ed with the intestate, and only a special property passed to J' 
 
 the defendant. It is, therefore, to be distinguished from 
 
 a mortgage of goods, for that is an absolute pledge, tp be- 
 
 come an absolute interest if not redeemed at a fixed t ; .me. Uracton, 99. b. 
 
 Besides, delivery is essential to a pledge ; but a mortgage 
 
 of goods is, in certain cases, valid without delivery. 
 
 The mortgage and the pledge, or pawn of goods seem, 
 however, generally to have been confounded in the books, 
 and it was not until lately that this just discrimination has 
 been well attended to and explained. 
 
 I find no difficulty in saying that the defendant had no 
 authority to sell the pledge at the time he sold it. It was, 
 at that time, an illegal conversion of the intestate's proper- 
 ty. The pledge was delivered without any specified time 
 of payment or redemption. It was to remain in the de- 
 fendant's hands to be delivered upon payment. The cases 
 relied on by the defendant's counsel admit that, in such a 
 case, the pawnor has his whole life-time to redeem. If 
 this be so, the defendant had no right to sell during the 
 pawnor's life ; because the one right would be inconsistent 
 with the other. The expression, however, *that the 
 pawnor has his life as a time to redeem, where no time of 
 redemption is fixed, must be taken with this qualification, 
 that the defendant does not, in the mean time, call upon him 
 
 to redeem.' 
 
 This he certainly must have a right to do. The manner 
 in which that call is to be made, and, in case of the 
 pawnor's default, the manner of disposal of the pledge, are 
 distinct points which I need not now discuss ; because, in 
 the present case, no call whatever was made upon the intes- 
 tate, previous to the sale of the note. There is no instance 
 to be found, in case of a deposit for an indefinite time,
 
 CASES IN ERROR IN THE 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Cortelyou 
 
 v. 
 Lansing. 
 
 where the pawnee sold in the life-time of the pawnor, and 
 without making a previous demand, that such sale was held 
 good. The sale by the defendant was, therefore, clearly 
 unauthorized and illegal. 
 
 The next, and the more difficult question is, whether the 
 representatives of the pawnor have a right to call upon the 
 defendant to restore the pledge or its equivalent. That 
 the intestate had such a right is not to be disputed, and the 
 point is, whether it be such a right of action as died with 
 the person, or whether, as in all other cases of a right of 
 action, not founded on a personal tort, it descended to the 
 plaintiff. If the right of action did not descend, this will 
 be the first case, I apprehend, that ever existed, in which 
 the remedy for the conversion of one's property was limited 
 to the life-time of the party injured. But it is said to be 
 immaterial, what was the defendant's conduct in respect to 
 the pledge, since where no time was fixed, the pawnor 
 must redeem in his life-time, and if he dies without redeem- 
 ing, the property in the pledge becomes absolute in the 
 
 * 204 #pawnee. This last proposition has so much countenance 
 
 in the books, that to determine on its validity it will be ne- 
 cessary to bestow a considerable attention to the cases, and 
 if I am not greatly mistaken, the result will show that it is. 
 wholly destitute of any solid foundation. 
 
 Glanville^ the earliest of our juridical classics, has treated 
 ths subject with a precision not to be found in the authorU 
 ties of a subsequent period, and with a perspicuity and 
 
 t Gtonrille, lib. simplicity that bespeak a writer of a primitive age. A loan,| 
 
 10. e. J. p. 59. j, e b serveS) is sometimes made on the security of a pledge, 
 (sub vadii positioned) and the pledge may consist of chattels, 
 
 *l Rec&s, 161. lands or rents.J Sometimes possession is immediately 
 given of the pledge, on receipt of the loan, and sometimes 
 it is not. Sometimes the thing is pledged for a term, and 
 sometimes without. When a chattel is pledged and pos- 
 session is given, and for a certain term, the creditor is 
 bound to keep the pledge safely, and not to use it to its 
 detriment. If it be agreed that in case the debtor should
 
 STATE OF NEW-YORK. 2O4 
 
 not redeem the pledge at the end of the term, the pledge ALBANY 
 shall remain with the creditor as his own property, the vj^' 1 *^/ 
 agreement must be observed. But if there be no such Corteiyou 
 agreement, and there be a fixed time of redemption, and Lansing, 
 the debtor make delay in payment, the creditor may quicken 
 the redemption by a writ, (of which he gives the form,) and 
 which requires the debtor without delay to redeem (acquietet 
 rem quant invadiavit} the pledge. 
 
 On the return of the writ, if the defendant confessed the 
 pledge,! he was commanded to redeem in a reasonable t * Reeves, i2. 
 time, and on default, the ^creditor had license to treat the * 205 
 
 pledge as his own. But if the pledge was made without 
 mention of any particular term4 the creditor might (debitum ^ ^ K 3. 
 petere) demand his debt at any time and the debt being dis- 
 charged, the creditor was bound to restore the pledge with- 
 out any deterioration. , 
 
 This authority establishes two points. 
 
 1st. That if the pledge was not redeemed by the time 
 stipulated, it did not then become absolute property, in the 
 hands of the pawnee, but the pawnee was obliged to have 
 recourse to the aula regis, and to sue out an original writ, 
 in order to obtain authority to dispose of the pledge. 
 
 2d. That if the pledge was for an indefinite term, the 
 creditor might, at any time, call upon the debtor to re- 
 deem by the same process of demand. By what authority 
 the judges in the time of James I. advanced a different 
 doctrine on this subject, is not made to appear. The 
 rights of the parties arising out of the case of a pawn, un- 
 derwent, however, a considerable discussion in three seve- 
 ral cases during that reign. 
 
 In the case of Mores v. Conhemfi 7 Jac. I. in C. B. it t Owen, />. 12S. 
 was resolved by the court, that a pawnee had a special 
 property in the goods pawned, and might use the pawn, so 
 that it was not to its detriment, and if he aligned over the 
 pawn, the assignee would be subject to detinue, if he de- 
 tained the pawn after payment by the owner. 
 
 This decision was correct, and in harmony with the ao-
 
 205 
 
 ALBANY, 
 
 Feb. isos. 
 
 Corteiyou 
 Lansing. 
 
 99- b - 
 
 * 207 
 
 CASES IN ERROR IN THE 
 
 cient laws, as laid down by Glanville and Br acton. ^ It con- 
 sidered a pawn in its true light, as a mere deposit of a 
 chattel to be detained as a security, #and that the general 
 property was still in the pawnee. 
 
 The next case is that of Sir John Ratdiffe v. Davis, 8 
 Jac. I. in K. B. That was a suit in trover, and the special 
 verdict stated, that the plaintiff had pawned a hat-band, set 
 with jewels, unto one Whitlock, a goldsmith, for 25/. no 
 day was set to redeem. The pawnee on his death-bed, de- 
 livered the pledge to the defendant, with a request to keep 
 it till the money was paid, and then to deliver it to the 
 plaintiff. The pawnee then died, and the plaintiff ten- 
 dered the debt to his executor, who refused to receive 
 the money, and then he applied to the defendant and 
 after a demand and refusal, brought his suit. The 
 court gave judgment for the plaintiff ; and of course decided 
 all the points arising out of the verdict, which were, that 
 the tender to the executor was well made ; that by the ten- 
 der and refusal, the special property in the pledge revested 
 in the plaintiff ; that the general property had been con- 
 stantly in him ; that the death of the pawnee did not de- 
 stroy the right of redemption ; that refusal by the defend- 
 ant after tender to the executor, was a conversion, and 
 that the defendant had only the bare custody of the pawn. 
 This decision was in every respect reconcilable with the 
 ancient law. It maintained without diminution, all the 
 well known and settled rights of the respective parties ; and 
 had not the erudition of the judges (according to the taste 
 of those times) carried them far beyond the record before 
 them, and led them to discuss points, not relevant to the 
 issue T we should, probably, never have heard of the present 
 question. 
 
 *But in giving their opinions, one of the judges said, 
 that executors might redeem a pledge, and that it would 
 be assets in their hands. The other four observed, that if 
 time be limited to redeem, the death of either party pre- 
 vious to that time, could not prejudice the right : but if no
 
 STATE OF NEW-YORK. 
 
 207 
 
 time was limited, the pawnor had his whole life, and if he 
 died before he redeemed, the right was gone, and his execu- 
 tors could not redeem. It were to be wished that the rea- 
 sons of the judges had been more fully reported than we 
 find them in this case. 
 
 In the case as reported in Bulstrode, the only reason sta- 
 ted is, that it would be very mischievous to compel the 
 pawnee to keep the goods thus pawned, for such an indefi- 
 nite time, when he hath paid sufficiently for them. But 
 this objection would have been found to have had no vali- 
 dity, if they had only attended to the law as laid down by 
 Glanville, who says, as I have already stated, that where 
 no time is fixed, the creditor might quicken his debtor's de- 
 lay, and demand his debt at any time, the process for 
 which he has given. From the case as reported in Croke^ 
 it is very questionable whether the court ever agreed in 
 these extrajudicial dicta. He states that two of the judges 
 held, that redemption could not be made after the death of 
 the pawnor; for he, at his peril, ought to redeem in his 
 time, as it is upon a mortgage ; but that the others (and 
 who were the majority) held otherwise, for that pledging 
 doth not make an absolute property as in the case of a 
 mortgage of land ; but it is a delivery only until he pays, 
 &c. So it is a debt to the one and a retainer of the thing 
 to the other, for which there may be a redemand *at any 
 time upon the payment of the money, as the pawnee hath 
 but a special property in the goods to detain them for his 
 
 security. 
 
 In Yeherton and Noy, the opinion of the court is, how- 
 ever, given as it is in Bulstrode, and the reason stated is, 
 that the pledge is a condition personal, and extends only 
 to the person of him who pawned it. Supposing, then, 
 this to be the more correct report of the case, the ground 
 of the opinion is equally unsound ; a pledge is not a pro- 
 perty created upon a condition of defeasance like a mort- 
 gage. It has no analogy to the case of a right which is 
 absolute to vest, or to be defeated on the happening of an 
 
 z z 
 
 ALBANY, 
 
 Feb. 1805. 
 v^V^-J 
 
 Cortelyou 
 v. 
 
 Lansing. 
 
 * 208
 
 SOS CASES IN ERROR IN THE 
 
 ALBANY, event, nor is it susceptible of that strict construction, unless 
 
 ^^v~^s it be so modified by the express agreement of the parties. 
 
 wteiyou Least of all is it a condition personal to be performed eX 
 
 Lansing. clusively by the pawnor. There is nothing of this in 
 
 '' '- "~~-~ the nature of the contract, and in most cases, as wher? 
 
 the time of payment is mentioned, if is agreed, that the 
 right may remain perfect in the representatives of the par- 
 ties. 
 1 2 Co. 79. the In feofTmchts of land, upon condition that f rte feoffee do 
 
 Lord Cromwell's . . vti i i IT 
 
 case. Dy. 139- a. n act, arid no time be limited, there he hath only his lite- 
 time ; but if his heirs be mentioned, the condition is not 
 broken by his death ; but extendeth to his heirs indefinitely 
 without limitation of time, ttttd canrtot be broken except 
 Upon request made by the feoffbr or his heirs. 
 
 If the naming of the heirs would, in this case, do away 
 the limitation of this condition to the person of the feoffor, 
 even according to the rigid construction that used to pre- 
 
 * 209 v ^ r '> tinder the genius of the feudal *lavv over feoffments 
 
 upon condition, surely it cattnot be material that in personal 
 contracts the executor should be named, for it is a general 
 arid well established principle, that they are affected equally 
 Us if named. 
 
 This notion of a pledge, resting upon the performance 
 of a condition, to revest the right as in the case of a mort- 
 gage, probably led to the decision in Capper v. Dickinson, 
 
 * i Roll Rep. K. B. 13 jfae. I.J That if goods pawned for a time limited, 
 
 be not redeemed at the day, they are forfeited and may bt; 
 sold at the will of the pawnee. 
 
 This doctrine is also held by Justice Dodderidgc, in his 
 Office of Executors. He says the patvnee may dispose of it 
 $Voi. i. TO. si. at his pleasure. This last decision not having any direct 
 application to the present case, may be passed over without 
 much notice. Ic is contrary to the contract of pledge, 
 which does not pass any absolute interest, nor rest on any 
 absolute condition. It is, as we have seen, repugnant to- 
 tile ancient lav,*, and it is contradicted by a late authority.
 
 STATE OF NEW-YORK. 309 
 
 Csmynsfi who is of himself a great authority, says, that if 
 a man pledge goods for money lent, he may redeem, though \^v^^ 
 he does not come at the day ; and the practice has since be- c.imiy on 
 come familiar. **"*W 
 
 By the lex cammissoria]. at Rome, it was lawful for the t Dig dt 
 creditor and debtor to agree,, that if the debtor did not pay f^-^ 
 at the day, the pledge should become the absolute property **, 
 
 of the creditor. But a iavy of Constuntine, contained in iok uc.\7. 
 
 , r Domat. aW./<. 
 the Code, abolished this as oppressive, an4 with marks ot n. 
 
 indignation, declared that the memory of the former law 
 
 ought to be abolished to all posterity. Such a rigorous deci- 
 
 sion as that in Roll?, is contrary to the law of France, of *ffpl- #210 
 
 land, of Scotland 9 *&ul 9 probably, of all other countries which 
 
 have felt and obeyed the influence of the civil law ; and if it 
 
 were really a part of the English code, in this instance also ? 
 
 we might say of these people, that they were truly " tola 
 
 tlivisos orbe" by their laws, as well as by their situation. 
 
 There remains only an extrajudicial dictum of Ch. J. 
 Trfby& and another of Lord flarwic&efi and both support- $ i Ld. Pay 
 ed only by the case in Bulstrodc, which go to show that n $1 y^ vt| 
 pawn is not redeemable after the death of the pawnor, and 
 these are all tbe authorities, as far as I have been able 
 to discover, on which the whole proposition has rested. 
 
 In the chancery cases of Tucker, Administrator, &?c, y, 
 Wilson, in 1714, and Lockwood y. Eiuer, in 1742, aad 
 Kemp v. Wettbrook, in 1749, it was said, that a pawnee of 
 stock was not bound to bring a bill of foreclosure, aa<J 
 might sell without it. But in the two first cases, the .stack 
 had been, in the first instance, absolutely transferred to the 
 mortgagee with a defeasance thereto, that the assignment 
 should be void, or the stock netransferred on payment at 
 the day. They were cases, therefore, not of a pledge, but 
 of a mortgage of goods, and although it is no where sta- 
 ted in what manner the mortgagee is to sell, yet, in the 
 first of these cases, there was a previous notice to the op- 
 posite party, according to the rule of the civil law, and the 
 giving of this notice was asserted to be the constant prac-
 
 210 CASES IN ERROR IN THE 
 
 ALBANY, tice. The last case was strictly a pledge of chattels to se- 
 
 ^~s**^f cure a loan, without a specified time of payment ; and the 
 
 Cortelyou assignee of the pawnor who had become a bankrupt, was 
 
 i.ansing. allowed to redeem. This case has, therefore, *no further 
 
 connexion with the present question, than to show that 
 
 where no time is fixed, an assignee is competent to re- 
 deem. 
 
 The two cases of Demandrau v. Metcalfft in 1715, and 
 
 * Prcc.in Chan. 
 
 420.2 Vem. fioi. of Vendezee v. Willis, ml 789, are cases of pledge, and 
 
 Mr. 524. 'GM. perfectly in point in favour of the plaintiff. In the one 
 
 jlro^i.' I0i 3 case > tnere was a P awn f jewels, and in the other of 
 
 bonds and securities. In both cases, the time of payment 
 
 had elapsed in the life of the pawnor ; he died, and the 
 
 executors, on a bill to redeem on payment of the debt and 
 
 interest, obtained a decree accordingly. It is said, indeed, 
 
 in the first case, that the executors could not have back the 
 
 jewels, without the assistance of chancery. 
 
 If by this was meant the identical chattel pawned, it was 
 perhaps correct ; but if the observation meant that the exe- 
 cutors had no remedy but in equity, it must be a mistake ; 
 for a court of law has complete jurisdiction over the sub- 
 ject, and is equally competent to grant relief where the 
 right of property is not extinguished. It would be unrea- 
 sonable to turn the plaintiff round to another forum, when 
 there are no technical difficulties to impede, nor any defect 
 of authority to give him redress here, by restoring to him, 
 if not the specific thing, yet its equivalent. If a court of 
 law will permit the one party to demand his debt after the 
 time, it will equally permit the other party to tender 
 
 t Sir 919. anc * re( l eem 4 * n tne case * ^ ie South Sea Company v, 
 Duncomb, K. B. 5 Ceo. II. it was decided, that where 
 the pawnor of stock did not pay at the day stipulated, the 
 pawnee had his election to sue for the debt, or to stand to 
 
 his remedy *a?ainst the paivn. The court did not state the 
 * 212 
 
 remedy, but still there was to be a remedy under the sanc- 
 tion of law, and the only remedies hitherto suggested in 
 the books, are the process by writ, as stated in Glanvifte;
 
 
 STATE OF NEW-YORK. 
 
 the bill of foreclosure, as hinted in other cases ; and the sale 
 by the pawnee, after notice in cases of the transfer of 
 stock, as seems to have been the practice. 
 
 From this review of the cases, I conclude, that what- 
 ever right to redeem existed in the pawnor at his death, that 
 right descended entire and unimpaired to his representative. 
 There are two decisions fully to this effect, and there is 
 not a decision to the contrary, or one which establishes, 
 that if no time be limited to redeem a pawn, the right to 
 redeem is extinguished by the pawnor's death. 
 
 The several dicta in the courts which go thus far, are 
 founded on principles manifestly erroneous. They departed 
 from the true nature of a pawn, which was well under- 
 stood in the Roman law, and well understood in the days of 
 Glanvitte and Bracton, who were, no doubt, greatly instruct- 
 ed by that inestimable system of civil jurisprudence, al- 
 though, with respect to Glanville in particular, he wrote 
 the English law of his time, without much, if any, adop- 
 tion from the Roman. The error consisted in applying to 
 pawns the severe feudal doctrine of absolute forfeiture upqn 
 breach of a condition, whereas a pawn is in no respect an 
 estate resting upon condition. 
 
 It would be a doctrine the most intolerable and oppress- 
 ive. In one of the cases mentioned, a pawn worth 600/. 
 was deposited to secure a loan of 200/. and if no time be 
 mentioned, and the pawnee can *sell when he pleases, 
 without first calling on the pawnor, or if the pawnor's 
 right is gone by his sudden death, the law would 
 establish a most disgusting speculation, infinitely more odi- 
 ous than the lex commissorla ; for that was founded upon 
 express agreement. And although the executor may not 
 redeem, the pawnee has still his election to sue, and the 
 executor has not even the privilege of the equitable rule, 
 aui sentit onus debet sentire commodwn. 
 
 It may be well enough to observe, by way of illustration, 
 that except in cases of special agreement, the Roman law 
 never allowed a pledge to be sold by the creditor, but upon 
 
 ALBANY, 
 
 Feb. 1805. 
 
 Cortelyou 
 
 v. 
 Lansing. 
 
 * 213
 
 213 CASES IN ERROR IN THE 
 
 ALBANV, notice to the debtor, and the allowance of a year's 
 Feb. 1*05. -,*,,. n- i t j r/ .- 
 
 ftoruf And as this was not sufficiently observed, Justi- 
 
 regulated the method of foreclosure by a particular a r- 
 dinance, by which two ytar&' notice or two years^ after a 
 
 .' ',' ' "' . ""- judicial sentence was allowed to the debtoi-.t 
 fPereausmtthe J 
 
 Code, vol. 2 62. It \vas moreover a well settled rule in that law, that the 
 
 tit. 34. fee. 4, 5. . . 
 
 rf9./>. 58. T/N&.V- creditor ootud never hold the pledge by prescription j and 
 e. fc W?3. /' ^ iat no fcngth of time would preclude the debtor and his 
 *!lktf?k 3 ft'. representative from the right to redeem, and the reason 
 r/13 tl- f' ff ' 8' lvcn ' ls vcr }' Conclusive, because the -creditor holds not as 
 4. Code, lib. s. }ji, O wu. fcm in another's right ; " alieno nomine pos$idet" 
 
 tit. '28. c. 4. a;zr . 
 
 n*. 34. c. i. I believe ihere is no country at present, wnees u be #9- 
 tit tff s c.' "i.i ^/^c/, that allows a pledge to be sold but in pursujujce of a 
 
 is case is as to the 
 is. and i Do- o f navsjept or tender of the money loaned *prcvious to 
 
 mat. 368. tec. 7. ' , ". 
 
 jJuhrus, vol. s. the commencement of the suit. 1 he payment oi the mo- 
 
 />. 1077. sec. 11. r i i T 
 
 V ey and the return of the pledge were to be concurrent acts, 
 
 Sii tobe performed by each party at the same time and place.ft 
 after 
 
 ' ' a capacity and readiness to perform, and 
 
 eath. .y c t jjeitber was to trust the other personally. The one was 
 
 5f Hiibenis, vol. ' 
 
 s. 1072. sec. o. no t actually to part with his money, unless the other 
 
 and Perezins, ., 
 
 vol. 2. 63. sec. 8. at the same time showed a capacity and readiness to 
 
 as to Holland . 
 
 and Brabant, return ttre pledge ; nor was the one to return the pledge 
 
 ^ ma sec. V "j, 10! unt ^ the other showed, at the same time, the like capacity 
 
 *ss?s ^France a0 ^ readjess to pay the rnoru-y ; the acts being reciprocal, 
 
 and Scotland. flnc ] mie dependent upon the other. 
 
 H- Kingston and &M when one parly bas ioeapdctiMed himself to perform 
 
 freston, Jjouff hispatt'of the contract, there is no need of the other 
 
 l^' 46 r;. irfl ^' coroinff forward at the time to ewfce a tender, or to show 
 
 208. 5 F*ner, 84. 
 
 innotis. Turner himself in a -capacity to pay, because it would be a negatory 
 
 v. Good-win. . c , ,. 
 
 act which the law will never require.. i the one party dts~ 
 cliarges the other froBi a performance, by saving he wijl 
 net perform on his part, (and voluntarily and tortiously rep- 
 c'erkig himself una'^c t-o perform his part -is jequi\ r aleMt to 
 such discharge ,) it is we31 nde.j"stood that it is not necessary 
 for the cthtr party to go ibr\va-rd. This was so decided in
 
 STATE OF NEW-YORK, 214 
 
 the case of Jones v. Barklcy,] and the same principle has 
 been frequently advanced iti other cases. In the case of 
 Judah, &c. v. Kemp, decided in this court, October term, 
 1801, the suit was in trover for goods; the plaintiff pro- Landing. 
 ved property and a demand and refusal ; the defendant was ^ Dm? 6si 
 master of a vessel and had a lien on the goods for freight; jj^gijjj 
 on demand he refused to deliver the goods, and said he 
 had not orders to deliver them; no tender of the freight, 
 nor even a capacity to make one was shown ; the defend- 
 ant did not object to deliver on that, but upon another 
 ground. The only question raised was, ^whether tender * 215 
 
 of the freight ought to have been made, and the court de- 
 cided that it was not necessary, as the act would have been 
 useless, and they gave judgment for the plaintiff. 
 
 The last question is as to the rule of damages. If the 
 direction of the judge was correct, or if the rule is to be 
 given by the court, then the verdict is to stand, and to be 
 made conformable to such rule. But if the damages are to 
 be considered as in any degree subject to the discretion of 
 a jury, a new trial is to be awarded. 
 
 There is no doubt but that the measure of damages is 
 sometimes a question of law, but more frequently it is to 
 be left at large to the discretion of a jury. In cases where 
 there is a criterion for an accurate computation, that cri- 
 terion must be followed, and it becomes, then, a rule of 
 
 law. 
 
 The value of the depreciation note is the measure of 
 damages in the present case ; and the only question is, how 
 that value is to be ascertained. If it is to be ascertained 
 from the face of the note ? or from what time is that value 
 to be computed? There must be some rule or principle on 
 the subject, ami that principle, whatever it may be, is a 
 question of law, and not of an arbitrary ad libitum discre- 
 tion in the jury. A great part of our common law juris- 
 prudence is only a collection of principles, to be selected 
 and applied to particular cases, by the discernment and 
 of the courts. I have no doubt the rule in the
 
 215 CASES IN ERROR IN THE 
 
 ALBANY, present case is a rule of law, and the only examination is 
 
 Feb. 1805. j. 
 
 *^~v~**s to discover rt* 
 
 Corteiyou The direction at the trial was* the value of the certificate 
 
 Lanli in 17$9, when the plaintiff went to make a demand. This 
 
 must not be understood to mean, *that the cause of action 
 
 arose then. From that ground the direction would have 
 been erroneous. Putting out of view the previous sale, 
 the plaintiff has not shown a cause of action by his act in 
 1799, for he ought at least to have shown, that he went 
 with a readiness and a capacity to pay. The mental inability 
 of the defendant may have rendered him incapable of re- 
 ceiving an actual demanrl from the plaintiff, but it surely is 
 not to be construed into a discharge to the plaintiff, from 
 the performance of his duty, which was to come with a 
 disposition and ability io perform his part of the contract ; 
 that act of the plaintiff was, therefore, wholly immaterial 
 as a ground of action, and if the value of the note is to be 
 estimated from that date, it must be because the plaintiff 
 manifested his will to have it then restored. 
 
 The value of the chattel, at the time of the conversion, 
 is not, in all cases, the rule of damages in trover ; if the 
 thing be of a determinate and fixed value, it may be the 
 rule, but where there is an uncertainty, or fluctuation at- 
 tending the value, and the chattel afterwards rises in value, 
 the plaintiff can only be indemnified by giving him the 
 price of it, at the time he calls upon the defendant to re- 
 store it, and one of the cases even carries the value down 
 to the time of the trial. 
 
 ,. Bvrr , 36 , The cases of Fisher v. Prince^ and of The Administrator 
 
 * Slack. Hep. O f ff unt v> Full cr have long since settled, that if the chat- 
 
 9(V2. &ee also 6 J ' . . . 
 
 Durnf, 696. te j a ft er the conversion increased in value, or be att< 
 
 with other circumstances, the damages may be enhanced 
 accordingly. And in the case of Shepherd, Executor, &?c. 
 
 1 2 East, 211. v. Johnson^, the defendant was sued for breach of contract, 
 
 * 21 7 in not replacing *a certain quantity of stock by a given 
 
 day, and the court held, as the direction had been to the 
 jury, that the plaintiff was entitled to recover, not merely
 
 STATE OF NEW-YORK. 217 
 
 the value of the stock as it stood at the day, but the value ALBANY, 
 as it stood at the time of the trial. And they said it was ^^^ 
 no answer to say, that the defendant might be prejudiced by Corteiyou 
 the plaintiff's delay in bringing his action, for it was his Lansing. 
 own fault that he broke his engagement, and he might re- '""" 
 place the stock at any time afterwards, so as to avail him- 
 self of a rising market ; I have no doubt it is just and 
 right that the plaintiff in the present case ought to recover 
 the value of the note at the time he chose to demand it ; 
 he has selected that time to call for his note and to liquidate 
 its value, and no other measure of damages short of that 
 Will indemnify him for the loss of the pledge ; I agree, 
 therefore, on this ground, to the direction that was given. 
 
 These were all the points that were stated in the case, 
 or raised upon the argument ; and they being with the 
 plaintiff, I take it for granted he is entitled to judgment, 
 and a new trial ought to be denied. 
 
 John Vandenheuvel against the United Insurarice 
 Company* 
 
 IN error on a judgment of the supreme court, in an ac- fo a J 1 J. eUo ? n 
 tion on a policy of insurance on the freight of " the good sunmce,the sen- 
 
 C \T V L tenCC Ot a { V ~ 
 
 American ship called the Astrea, at and trom JSew-lork^ ei^n court of ad- 
 
 , j 11 miralty, it not 
 
 to Corunna? the freight valued at ten thousand dollars, at conc iusive on 
 
 the character of 
 
 a premium of fifteen per cent. the property. 
 
 *At the trial in the court below, the jury brought in a 
 special verdict stating, among other things, 
 
 That the policy was underwritten by the defendants in 
 error, in consequence of a written application made to 
 them, by the plaintiff in error, in the words and figures 
 
 following, to wit: 
 
 * Neiv*York, \Uh November, 1798. 
 " Gentlemen-*- What will be the premium on the ship, 
 freight and cargo of the Astrea, captain JPrice, consisting in 
 
 3 A
 
 218 
 
 ALBANY. mahogany, tobacco, staves, dye-wood and sugar, at and from 
 Netv-Tork, to Cortinna y to sail in eight days, property of 
 
 Vandenheuvel 
 
 v. 
 
 United Insiir. 
 Company. 
 
 * 219 
 
 the undersigned. 
 
 J. C. VANDENHEUVEL." 
 
 That the ship in the course of her voyage was captured 
 by a British frigate, and carried into Gibraltar, where she, 
 together with her cargo, were libelled in the court of vice- 
 admiralty, and condemned as lawful prize to the captors, 
 " as belonging at the time of her capture to Spain, or to 
 persons being subjects of the king of Spam, or inhabiting 
 within the territories of the king of Spain, enemies of the 
 king of Great Britain." That the freight, by reason of 
 the capture and condemnation aforesaid, was totally lost to 
 the plaintiff in error, who duly abandoned the same to the 
 defendants in error, exhibiting to them at the same time, 
 due proof of loss and interest ; that the freight was really 
 the property of the plaintiff in error, and the ship and car- 
 go were also his property, unless in judgment of law the 
 plaintiff in error is concluded by the said sentence of con- 
 demnation; that the ship, at the time of the capture was 
 registered as an American vessel, and had all the papers 
 which an American vessel usually has ; that *the plaintiff 
 in error was born a subject of the United Netherlands, and 
 continued such until the 3d June, 1793, when he be- 
 came a naturalized citizen of the United States, according 
 to law ; and the defendants in error, at the time of under- 
 writing the said policy of assurance, well knew that the 
 plaintiff in error was born a Dutchman ; that the sum due 
 to the plaintiff in error, supposing him to be by law enti- 
 tled to recover a total loss, is 4,365 dollars and 6 cents, and 
 the sum due to the plaintiff in error, for return of premium, 
 supposing him to be by law entitled to recover no more 
 than a return of premium, is 700 dollars. After stating 
 these facts, the verdict submitted the following questions to 
 the decision of the court. 
 
 1. Whether the plaintiff in error is by law entitled to re-
 
 STATE OF NEW-YORK. 
 
 2t9 
 
 cover the said sum of 4,365 dollars and 6 cents, being the 
 amount of a total loss ? 
 
 2. If the plaintiff in error is not by law entitled to reco- 
 ver a total loss, whether he is by law entitled to recover the 
 said sum of 70O dollars, being the amount of return of 
 premium. 
 
 3. If the plaintiff is not by law entitled to recover a re- 
 turn of premium, whether he is by law entitled to recover 
 any sum whatever. 
 
 On this verdict the supreme court, after argument, de- 
 cided, that the plaintiff in error was not entitled to recover 
 as for a total loss on the said policy of assurance, but that 
 he was entitled to recover a return of premium, whereupon 
 judgment was entered for the plaintiff in error for the sum 
 of 70O dollars. 
 
 * In deciding on this case, BENSON, KENT, and R AD- 
 CLIFF, Justices, thus delivered their opinions. 
 
 BENSON, J. The principal inquiry in these causes is, re- 
 specting the effect of a foreign condemnation, the property 
 in the goods condemned being intended in the insurance of 
 them as neutral ; whether the condemnation is not conclu- 
 sive against the a&sured? This question has heretofore 
 come before us, but until the arguments which have taken 
 place in the present cause,, it does not appear to me to have 
 been so fully examined as the difficulty and importance of 
 
 it require. . . 
 
 A condemnation may be viewed, as consisting in 
 cause and in its principles, as to be discriminated from each 
 other; and the principles may be divided into those which 
 relate to the law, and those which relate to the fact, com- 
 prehending in the fact the proofs. 
 
 The distinction between the cause and the principles oi a 
 condemnation is exemplified in a case read on the argument 
 from a late English reporter, 7 Term Rep. Get/er v. Agui- 
 lar, where one of the. judges distinguishes between them 
 
 ALBANY. 
 
 Vandenheuvel 
 
 T. 
 
 United Insiif. 
 Company. 
 
 220
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Vandenheuvel 
 
 v. 
 
 United Insur. 
 Company. 
 
 # 001 
 
 ~ A&\ 
 
 
 as here intended ; he expresses himself : " The ground on 
 which the courts in France proceeded, was, that this was a 
 capture of enemy's property, and it certainly is not contrary 
 to the law of nations to condemn a ship on that ground. 
 Whether or not those courts arrived at that conclusion by 
 proper means, I am not at liberty to inquire," &c. which is 
 equally as if he had said, the cause of the condemnation as 
 declared by the courts of France, is, that the ship was ene- 
 my's property ; and which is a sufficient cause of condem- 
 nation by *the law of nations ; but what were the princi- 
 ples of the condemnation, namely, what were the proofs, 
 or what was the fact as found by those courts from the 
 proofs, or what was the law as adjudged by them to arise 
 from the fact, I am not at liberty to inquire, &c. 
 
 Insurances may be divided into general and special. A 
 general insurance, is where the perils insured against are 
 such as the law would imply from the nature of the con- 
 tract of a marine insurance considered in itself, and sup- 
 posing none to be expressed in the policy. A special in- 
 surance is where, in addition to the implied perils, farther 
 perils are expressed in the policy ; and they may either be 
 specified, or the insurance may be against all perils. 
 
 We have had an instance of each kind of these special in- 
 surances ; of the latter, in the case ofGoix v. Knox, "where, 
 besides the usual risks enumerated in printed policies, it 
 was declared by a clause in rvriting, that the assurance was 
 to be against all risks." And in the former, in the case of 
 Gardiner &? others v. Smith, " where the insurance was 
 against the risks, among others, of contraband and illicit 
 trade" and the goods were seized at Jamaica, while land- 
 ing, and condemned as contraband and illicit by the law of 
 that place ; and cases may be supposed where, although 
 the property is insured as neutral, the insurer may, never- 
 theless, expressly take on himself the peril of condemna- 
 tion, for breach of blockade, or for any other specified 
 or enumerated cause ; and in every such case, should there 
 be a condemnation, the assured must be allowed to
 
 STATE OF NEW-YORK. 221 
 
 either by the condemnation itself, if it furnishes the re- ALBANY. 
 quisite evidence, and if not, then by such matter extraneous Vandenheuve4 
 *to it, as, under the circumstances of the case, may be Unit J' Insur 
 admissible in evidence, that the condemnation was for some 
 one of the causes specified in the policy ; and so far, and to 
 that intent, doubtless, the condemnation is examinable in 
 the suit, by the assured against the insurer. 
 
 The cases at bar are, as it respects the perils of con- 
 demnation, cases of general insurance as here explained. 
 
 Where the property is insured as neutral, the law in- 
 tends not only that the neutrality, as an ingredient or quality 
 in the property or ownership of the goods then exists, but 
 likewise that it shall be preserved during the continuance of 
 the insurance, and, consequently, that there shall not be any 
 act or omission, either by the assured himself, or by others, 
 whose acts or omissions may in that respect be deemed to 
 affect him, to forfeit it ; and the neutrality constitutes as it 
 were, a title, the existence and preservation of which, 
 either in himself, or in the other persons, if any, on whose 
 account the insurance may be made, or for whose benefit 
 it may, in consequence of a subsequent transfer of the 
 goods, be to enure, the assurance is deemed to warrant ; 
 and this warranty, from the assured to the insurer, is a 
 condition of the insurance, or the indemnity from the in- 
 surer to the assured. 
 
 Every condemnation is either rightful or wrongful. 1 1 
 the captured goods, being duly defended in the court oi. 
 the captors, by alleging and proving the title of the assured 
 as above defined, should, notwithstanding, be condemned, 
 the condemnation will be wrongful. Every other condem- 
 nation is to be taken *as rightful, including a condemnation 
 by default, no person appearing to defend the goods ; and 
 where the condemnation is wrongful, it must be attributed 
 either to the error of die judge, as it relates to the law, or 
 as it relates to the fact as deduced from the proofs ; or er- 
 ror in the witnesses, as it relates to the proofs, in testifying 
 differently from the truth ; and whether the error, either oi
 
 223 
 
 CASES IN ERROR IN THE 
 
 ALBANY, the judge or the witnesses be innocent or wilful, can never 
 v * *"~v"^-' affect the question, whether the assured hath or hath not a 
 
 Vandenheuvel 
 
 United Insur. 
 Company. 
 
 * 224 
 
 right to controvert the condemnation. 
 
 If the assured has any such right, he must have it either 
 limitedly, to controvert the principles which relate to the 
 law, and not those which relate to the fact ; or those which 
 relate to the fact, and not those which relate to the law ; 
 and if to controvert those which relate to the fact, still he 
 is to be confined to the proofs as they were before the judge, 
 by whom the condemnation was pronounced ; or he must 
 have the right unlimitedly, or, as it is expressed in the case 
 of Hughes v. Cornelius, 2 Show. 232. to controvert the con- 
 clemnation " at large" 
 
 It will readily be perceived, that as the principal ques- 
 tion, whether the assured is or is not to be concluded by 
 the condemnation, may be diffei-ently decided ; so will the 
 situation of the insurer be varied from certainty of safety, 
 to the mere expectation or possibility of it. If the condem- 
 nation is to be conclusive against the assured, then, how- 
 ever, there may have happened a " capture, a taking at sea? 
 and so the case within the very terms of the policy; yet if, 
 further, there has been a condemnation of the goods, the 
 insurer is safe in an absolute sense ; but *if the assured 
 may controvert the condemnation, the safety of the insurer 
 then becomes uncertain of course ; in like manner, though 
 in less degree, may the situation of the insured be varied, 
 as the several questions respecting the limitations of the 
 right of the assured to controvert the condemnation, may 
 also be differently decided. 
 
 In some cases it may be more favourable for the insurer, 
 that the assured should controvert the law and not the fact. 
 In others, again, that he should controvert the fact and not 
 the law ; and it must ever be most favourable to the insurer, 
 tnut the assured should be precluded from producing new 
 proofs ; and this difference of situation must be viewed as 
 material, in the greater number of cases, which probably 
 will happen ; not only so, bat some may easily be concciv- 
 
 5
 
 STATE OF NEW-YORK. 
 
 224 
 
 ed, where, as it respects the certainty, or possibility, that 
 the assured can, or cannot, succeed in showing the con- 
 demnation to be wrongful, may wholly depend on a different 
 decision one way or the other, of these questions, taken 
 singly ; before, therefore, it can be declared that the right 
 of the assured to controvert the condemnation is limited, 
 the rule whereby some of the limitations of it here sug- 
 gested, are to be adopted, and others to be rejected, ought 
 to be shown. It may, however, be safely asserted} no such 
 'rule exists ; the limitations themselves, the distinctions that 
 where a judgment is alleged, the party against whom it is 
 alleged may controvert it as to the law, but not as to fact ; 
 or as to the fact, but not as to the law ; and if as to the 
 fact, that he is still to be concluded as to the proof, not be- 
 ing known in the law ; and I cannot discern them, as *to 
 be inferred from any thing peculiar in the contract of in- 
 surance ; so that the right of the assured to controvert the 
 condemnation not being susceptible of limitation, if, there- 
 fore, he has the right, he must have it unlimitedly, to con- 
 trovert the condemnation at large. 
 
 It is now to be stated, that where the property is insured 
 as enemy's property and a capture by an enemy, the other 
 belligerent party, it is inevitable that the goods will be both 
 actually and rightfully condemned ; they are as much lost 
 to the assured as if they were captured by a pirate, and can 
 no otherwise ever happen to be recovered to him than by a 
 recapture ; and he may, in such case, abandon instantly on 
 the capture. But where the property is insured as neutral, 
 there are means, which, as to be distinguished from the 
 forcible or physical means of recapture, may be denominated 
 moral means, whereby, until a condemnation shall have taken 
 place, it is possible the goods may be recovered : there may 
 be a claim and defence of them in the court of the captor; 
 and although it is stated as possible only that the goods may, 
 by a defence of them, be recovered ; yet, if it was requisite 
 to the argument, it might be stated as the intendment of 
 law that it \s prsbubk ; for if the title of the assured should 
 
 ALBANY. 
 
 Vandenheuvel 
 
 v. 
 
 United Insur. 
 Company. 
 
 * 225
 
 225 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Yamleuheuvel 
 
 v. 
 
 United Insiir. 
 Company. 
 
 * 226 
 
 * 227 
 
 be duly alleged and proved, and the goods should, notwith- 
 standing, be condemned, the condemnation, as has been 
 already stated, must then be to be attributed to the error, 
 either of the judge or the witnesses, and the law will never 
 presume error beforehand. If, however, there is a possi* 
 bility only, that, by a defence of the goods, a ^condemnation 
 of them may be prevented, it is sufficient to make it the 
 duty, either of the assured or the insurer, to defend them, 
 or to bear the loss, if they should be condemned undefend- 
 ed ; but it will be perceived the law can never impose it on 
 the insurer to defend them. 
 
 Where lands are granted with warranty, if the grantee is 
 sued by a person, claiming by better title than the title of 
 the grantor, he may, as it were, abandon to the grantor ; he 
 can compel him to appear in court, and defend the land ; 
 he may vouch him, and thereby substitute him as the de- 
 fendant to abide the event of the suit "for loss or gain ;" 
 and he is the party to be presumed best cognisant of the 
 title. Such is the rule in the case of a warranty, in the 
 nature of a general contract of indemnity, from grantor to 
 grantee ; but if the assured may abandon to the insurer on 
 the capture, and impose the defence of the goods on him-^ 
 the rule will be reversed ; the warrantor may then substi- 
 tute the warranted, as the defendant, and the defence of the 
 title will then be imposed on the party to be presumed not 
 only least cognisant but even wholly ignorant of it. 
 
 The warranty in a grant of land being an indemnity 
 against the acts of others claiming by title, and consequently 
 not against entries by persons not so claiming, nor against 
 assumptions of the land by the public authority of the state, 
 nor as to any matter which may have come to exist there- 
 after ; it may be said to be an indemnity against title only, 
 and not against casualty; and, accordingly, if there should 
 be a judgment against the title of the grantor, whether 
 rightful or wrongful, he is alike held to indemnify *the 
 grantee for the loss of the land ; but where the property is 
 insured a neutral, the warranty of the title, so far from be-
 
 STATE OF NEW- YORK. 227 
 
 ing by the insurer to the assured, being by the assured to ALBANY. 
 the insurer, the insurance can be a warranty or an inclem- '"""^v" 1 f 
 
 , . Y:;iideiiheuvcl 
 
 nity, not against title, but against casualty only, against tor- v . 
 
 c i 1*111 United Insur. 
 
 tious acts or private persons, and so unauthorized by law, comjianv. 
 
 or the acts of the state, such as reprisals, embargoes and im- 
 
 pressments, the acts, in neither case, however, proceeding 
 on a supposed total absence, or a defect, or forfeiture of the 
 title, as warranted by the assured ; another consequence, 
 therefore, of a supposed right in the assured, to abandon 
 on the capture, and impose the defence of the goods on the 
 insurer, will be, that the insurance will thereby be essentially 
 changed from being an indemnity against casualty only, to 
 be likewise an indemnity against title, and against a want of, 
 that very title, which, as has been stated, the assured war- 
 ranted to be existing, and that it should be preserved. 
 
 Farther If the assured may abandon on the capture, he 
 is entitled then, also, to sue for the loss, and the insurer 
 must, accordingly, litigate the suit, in expectation it may be 
 in his power to prove either that the property was not neu- 
 tral, or that the neutrality had been forfeited, and so a breach 
 of the warranty, and involving as a consequence, that the 
 goods may be rightfully condemned ; or he must pay the 
 loss voluntarily, and also instantly ^ any credit allowed in the 
 policy, being wholly of special or positive compact or regu- 
 lation, and not arising from the insurance considered in 
 itself. If he litigates the suit on the policy, he must relin- 
 quish a defence #of the goods in the court of the captor, or # 228 
 c-xpose himself to the palpable incongruity of insisting in the 
 suit by the assured, that the goods may be rightfully con- 
 demned, and of insisting, at the same time, in the suit by 
 the captor, that they are neutral property ; that the neu- 
 trality lias been preserved, and, therefore, that they cannot 
 l)e rightfully condemned. On the other hand, if he volunta- 
 rily pays the loss, he then precludes himself from after- 
 wards alleging a breach of warranty ; for, although I forbear 
 from an opinion, whether the insurer can or cannot recover 
 bark the monev paid for a loss, as having paid it, not knorv.
 
 228 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 TandenheuveJ 
 
 v. 
 
 United Insur. 
 Company. 
 
 * 229 
 
 ing at the time, certain facts, which, if he had knowfl, he 
 might thereby have discharged himself from the insurance j 
 yet, I have no difficulty in declaring, that the facts must be 
 such as it may be supposed he could not be so apprized of 
 them, as to be put on an inquiry, or to be on his guard 
 respecting them, which, however, can never be said to be 
 the case, where goods being insured as neutral, are captu- 
 red by a belligerent, it being to be intended, as will be more 
 particularly stated hereafter, that they were captured, as 
 charged to be enemy's property, although insured in the 
 name of a neutral ; and, therefore, if the assured will, not- 
 withstanding, voluntarily pay the loss, he will then be deemed 
 for ever to have waived or renounced his right to allege the 
 breach of warranty ; and the case will be within the general 
 rule, that if a party shall omit to allege a fact, existing at the 
 time, and whereby he might have defended himself against 
 a recovery, he shall not, as against the other party in the 
 suit, be allowed to avail himself of it thereafter, and which 
 was recognised in the court of errors, in the case of Le 
 ^Guen, Appellant, v. Gouverneur ? Kemble, Respondents ; 
 where the appellant having placed goods in the hands of 
 the respondents, as his agents, to be sold, and having him- 
 self made a contract for the sale of them to Gomez & Co. 
 but leaving the sale still to be perfected by the respondents, 
 the notes given in payment, were, accordingly, to them in 
 their own names, and the vendees having, before the notes 
 became payable, proceeded to France with the goods ; "he 
 demanded from the respondents an authorization to receive 
 there, whatever sum should remain of the proceeds of the 
 goods, so sold on his account, to the above vendees, after 
 first deducting and reserving at their disposal, such sum as 
 should be completely sufficient to cover them, for the ge- 
 neral balance of their account ;" and they refusing to give 
 him the authorization, he brought a suit against them in 
 this court for the refusal, as for a breach of orders, where- 
 by they had become instantly liable for the value of the 
 wlic's of the sale, and on a special verdict he had judg?-
 
 STATE OF NEW-YORK. 229 
 
 ment, and to the amount so claimed by him. The re- ALBANY. 
 spondents thereupon filed their bill in the court of chancery. .^ - ^ N ^^ taP/ 
 
 Vandenheuvel 
 
 to the effect of a suit at law, to recover buck a payment., to v. 
 
 ...... ,. . United Insur. 
 
 enjoin him Irom proceeding on the judgment, *' suggesting Company. 
 that subsequent thereto, on the trial in the suit which they 
 had brought on the notes against the vendees, a verdict had 
 teen found for the defendants, on the sole ground of a fraud 
 having been practised by the appellant in the sale of the 
 goods, 1 ' by affirming or warranting them to be of a better 
 kind or quality than they were, " and the Chancellor order- 
 ed an issue at law to try the fraud. A question, however, 
 was reserved by the counsel of both parties, to be deter- 
 mined as a preliminary %o the trial, whether the respond- 
 ents were not precluded by the antecedent circumstances, 
 from insisting upon the alleged fraud as a ground of relief ? 
 The Chancellor decreed they were not so precluded, and 
 confirmed the order for the trial, and on the appeal, the de- 
 cree was reversed, and the respondents' bill in the court of 
 chancery was ordered to be dismissed." If, therefore, the 
 assured may abandon on the capture, and as the insurer 
 must accept the abandonment, and pay the loss, then, al- 
 though it might afterwards be proved undeniably in the 
 court of the captor, that the property was not neutral, the 
 insurer would, notwithstanding, be without any means 
 of restitution. 
 
 These considerations are sufficient to show that the as- 
 sured cannot abandon on the capture ; that it is necessary 
 the goods should be defended in the court of the captor; 
 that the defence of them remains on him ; and that he can- 
 not cast it on the insurer. It is, however, at the same time 
 to be stated, that if, having made a defence in the court of 
 the captor, the assured may still afterwards controvert the 
 condemnation at large in the suit on the policy, it is obvi- 
 ous such previous defence can be estimated as a mere for- 
 mality only ; that nothing is gained by it to the insurer, 
 but that he is kft in the like disadvantageous situation as if 
 he, and not the assured, had to defend the goods in the
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Vandenh vel 
 . v. 
 
 United Insur. 
 Company. 
 
 * 231 
 
 232 
 
 court of the captor ; for although in the suit on the pslicy, 
 instead of defending he will have to defeat the title of the 
 assured, still the one case, equally as the other, involves 
 the truvh or falsehood of the same facts ; so that the reasonr 
 ing, from what has been stated, terminates in this conclu- 
 sion, that the right of the assured to controvert %he con- 
 demnation, if it does exist, can exist no otherwise than to 
 controvert it at large ; that it is his duty to defend the 
 goods against a condemnation in the court of the captor, 
 and that the right and the duty beii:g incompatible, the 
 right must be declared not possible to exist. Lest, how* 
 ever, the reasoning, as it may respect the question, whe- 
 ther the assured can or cannot abandon instantly on the 
 capture, may be considered as inconclusive and unsatisfac- 
 tory, unless it be shown when he can abandon, it may be 
 requisite still briefly to state, that besides the case of a cap- 
 ture by an enemy, the opposite belligerent party, where the 
 goods are insured as enemy's property, and a capture by a 
 pirate, there is another case where the assured may aban- 
 don on the capture : The case of a capture by way of re- 
 prisal, and which, indeed, is in the nature of a capture by 
 an enemy, but that every other capture being necessarily 
 by a friend, in relation to the captured, must be intended 
 to be that the goods are to be carried into a port of the 
 captor, for a regular and authorized examination or adjudi- 
 cation, whether they are or not lawful prize, either as be- 
 ing covertly enemy-property ; or if neutral, that the neutrali- 
 ty has become forfeited, and the assured being held to fol- 
 low the goods and defend them, and the condemnation be- 
 ing conclusive against him, should they be condemned, it 
 results that he can abandon only in the event of their being 
 restored to him, and the voyage, in consequence of the cap- 
 ture and detention, broken up; and if the insurer shall there- 
 upon pay the loss, then, whatever right or remedy there 
 may be against the c;<*-tor, will enure to his benefit. 
 
 * The practice in France has been urged as a precedent, 
 and Emerigon has been read on the argument, to show
 
 STATE OF NEW- YORK. 
 
 232 
 
 what is there received as law on the subject. u The act of ALBAXY. 
 the prince is put in the class of casualties (La classe des cas \^T?C*~ \ 
 fortults} and such also is the case (// en est de meme du fait] 
 
 ' J ' United Insur. 
 
 as to the unjust sentence of a magistrate ; and it is of no Company, 
 importance whether the injustice proceeds from the corrup- 
 tion of the judge or his ignorance ; so that it is then cer- 
 tain, that the insurers shall answer for an unjust condemna- 
 tion pronounced by the tribunal of the place into which the 
 captured ship shall be carried, judgments rendered by 
 foreign tribunals being of no weight in France against 
 Frenchmen, the cause being to be decided anew ; whence 
 it follows, that a judgment of condemnation pronounced by 
 an enemy-tribunal, is no proof that there hath been a con- 
 cealment of the real person for -whose account the insurance 
 was made (que le veritable pour compte ait ete cache') nor any 
 title (tin titre) which the insurer may allege to avoid paying 
 the loss. Such is our jurisprudence." Emerigon^ c. 12. 
 s. 20. 
 
 The last sentence may be expressed in other words, 
 " such is our interpretation of the contract between the as- 
 sured and insurer, as to the right of the assured to contro- 
 vert a foreign condemnation, the property being insured as 
 neutral." The argument, as contained in what is here 
 cited, is, that an insurance being an indemnity against 
 casualty, and an unjust foreign condemnation being a 
 casualty, an insurance is therefore an indemnity against an 
 unjust foreign condemnation ; and the act of the prince be- 
 ing a casualty, the proof of the minor term in the syllo- 
 gism *consists in an assertion, that the act or unjust sen- * 23;> 
 tence of a magistrate, is to be classed equally with the act of 
 a prince among casualties ; whereas it is difficult to conceive 
 two acts less of the same class or nature, and especially as 
 it respects assured and insurer, than the act of a prince in 
 the exercise of mere sovereignty, arresting goods either for 
 permanent appropriation, or for temporary use, or deten- 
 tion only, and the act of the magistrate in function as a judge 
 between captor and captured, condemning the goods as for-
 
 233 
 
 ALBANY. felted to the captors. The act of the prince is arbitrary, and 
 Vandenheuvel Can be j ustifie d only from necessity, for reasons of state, 
 United' Insur ""* ""^ consist with an admission of a perfect title to the 
 Company. goods in the captured, the person from whom they may be 
 taken ; whereas, the act of the magistrate is judicial, and if 
 right, can be only so, as warranted by the law of property, 
 and is in denial of the title of the captured. In case of an 
 arrest by a prince, the right of action of the assured accrues 
 by the arrest, and, therefore, whether it can be justified or 
 not, is never brought into question ; but where there is a 
 condemnation by a magistrate, the right of action does not 
 accrue by the condemnation itself, it can only be conceived 
 to accrue by the supposed injustice of it. If the arrest, the 
 act of the prince, is of that class of acts for which the in- 
 surer is to answer ; then it is immaterial whether it is a 
 foreign or domestic arrest, if the term " domestic" may, 
 for the sake of brevity, be used and applied to an arrest by 
 a prince, and a condemnation by a magistrate, to distin- 
 guish it as having happened in the same, and *not in a dif- 
 ferent nation from that where the assured shall have sued 
 on the policy, the insurer is equally to answer for the one 
 as the other ; but as it relates to a condemnation, the dis- 
 tinction between foreign and domestic is essential; the 
 right, as contended for, being to controvert a foreign con- 
 demnation only ; and, consequently, a domestic condemna- 
 tion is always to be received as conclusive against the as- 
 sured ; hence, it is evident, that if an unjust sentence of a 
 magistrate is a casualty for which the insurer is to answer, 
 it cannot be so as being of the same class with the act of 
 the prince : or that if it should be admitted to be a casualty, 
 as being so of the same class, or like an act of the prince, 
 then, as the insurer is equally to answer for the arrest, 
 whether it is domestic or foreign, so ought he, in like man- 
 ner, to answer for the condemnation, whether it is domesr- 
 tic or foreign ; and, therefore, that as far as the argument 
 for the right of the assured to controvert a condemnation, 
 depends on a supposed similitude between an unjust con- 
 2
 
 STATE OF NEW-YORK. 
 
 234 
 
 demnation by a magistrate and an arrest by a prince, and so ALBANY; 
 far as it also depends at the same time on the distinction ^^^^ 
 between a foreign and domestic condemnation, and that the 
 
 Lnitetl Insur. 
 
 right is only to controvert the former but not the latter, it is Company. 
 at variance with, and, consequently, defeats itself. 
 
 Emerigon, in farther support of the assertion " that an 
 unjust condemnation is a casualty, for which the insurer is 
 to answer," refers to Roccus, Not. 54. " Merces captce a 
 potestate. seujudicejustitzam administrante in illo loco y ant a 
 popuh) out ab aliqua quacunque persona per vim, absque pretii 
 solutione, tenenter assecurctores sofoer.e uestimationem ^domi- * 235 
 
 nis mercium, facto, prius per dominos rnercium cessione ad 
 beneficium assecuratorum pro recuperandis illis mercibus, vel 
 pretio ipsonim a capientibus t ut probat Stracc : De A*sccu- 
 rat: Gloss: 20. et sequitur Joan: de Evia in Labyrint: 
 Commer. naval : lib. 3. c. 14. numb, 2T. et melius fundatur 
 ex dictis a Santer : De Assecurat : pars 4. num. 20. ubi ad- 
 ducit casum de injustitiafacta, ab aliquo judice ex quo merces 
 amittantur vel damnum aliquod sentiunt, an comprehendatur 
 sub promissione casus fortuiti et assecurator teneatur ? Ad- 
 ducit Bart: in L: except ione col: penult: in Jin: Jf: de 
 fidejuyso ; ubi illud, quod judex facta injuste, quoad partes^ 
 dicitur casus fortuitus, et pertinet ad emptsrem rei, et S'IG 
 videtur in assecurationc quod pertinet ad ilium qui in se sus- 
 cepit casiim fortuitum." I do not possess the authors here 
 referred to by Emerigon, but I find the last, Bartolus, refer- 
 red to by Perezius, as a writer on the civil law. Recourse, 
 therefore, must be had to that law to discover the evictions 
 of the things sold, (the condemnation intended by him as 
 casualties, (casus fortuiti) and so belonging to the buyer 
 qui pertinet ad emptorum,) to bear the loss himself, to be 
 as distinguished from those for which the seller is to answer, 
 in order thereby farther to discover, whether in a suit judi- 
 cially heard and determined between captor and captured, a 
 condemnation of the goods as a prize to the captors for want 
 of title in the captured, and alleged to be wrongful, is an
 
 235 CASES IN ERROR IN THE 
 
 ALBANY. eviction of the captured, the assured, for which the insurer 
 ***~ y ~*~ / is to answer ? " Tenetur de evictione venditor Porro evicta 
 
 Vamlenheuvel .. ^ . 
 
 re dalur empton actio adversum vcnaitorem st ex empto 
 actio, qua: inest natura contracts* Cessat evictions prces- 
 
 ' tatio ob culpam emptoris Citlpam committet empto r, ncque 
 
 de evictione agere potcst, si, cum posset venditori denunciarc, 
 non denunciaverit motam controversial?!, utque judklo adesset 
 et rem defenderet, nam venditori poterat fuisse justa defen- 
 sionis causa utpote scienti melius rei a se venditae jus et con- 
 ditionem Ac sic in causa evectionis sententia lata contra 
 emptorem ei .sit regressus contra venditor em si vocatus ab 
 empto re venditor injudicio comparuerit ad rei defensionem 
 earn que susceperit, quia nihilest quod imputetur empton, qui, 
 lit requiritur, denunciavit venditori motam /item, cut, quod 
 cam defendere non potuerit, imputandum ent^' Pcrezii 
 Protect : in lib. 8. cod. tit. 45. de evictioneb. From these 
 passages, it is evident, that the evictions, intended by Bar- 
 talus to be deemed casualties, and so the loss by them to be 
 borne by the buyer, must be of a different class or kind from 
 an eviction for the want of title in the seller, he having been 
 vouched to appear and defend his title (vocatus ut injudi- 
 c.io compareat ad rei defenstonenf) and the civil law, as to 
 the warranty from the seller to the buyer, in respect to the 
 eviction, or other act whereby the buyer may lose the thing 
 sold, when the loss is to be borne by the buyer, and when 
 the seller is to answer for it, being the same with our own 
 law, it is not necessary, as an answer to the argument, from 
 the supposed analogy between the case of seller and buyer, 
 and the case of assured and insurer, to add to what has 
 already been stated in comparing or contrasting a warranty 
 in a grant of lands, with, an insurance, the property be- 
 ing insured as neutral ; and it only remains to be re- 
 * 237 marked *on Emerigon, considered as an authority, that 
 
 jRoccus himself, on whom he relies, does not, by the act of 
 the judge in taking the goods, and for which the insurer 
 to answer, intend a judicial act or procedure between cap- 
 tor and captured in a case of taking or capturing goods as
 
 STATE OF NEW-YORK. 237 
 
 lawful prize ; the taking, as he describes it, being within ALBANY. 
 the territory where the judge has jurisdiction, (captx ju- Vandenhemei 
 dice justitiam administrante in illo loco} but a taking as a United Tnsur. 
 prize, it is to be supposed, would have been mentioned by Comdauy. 
 him as taken at sea. That the injustice of the taking con- 
 sists in its being without paying for the goods, (absque so- 
 lutions pretii} necessarily importing that the captured, the 
 person from whom they were taken, was entided to be paid 
 for them, and which again necessarily affirms his title to- 
 them ; but when the goods are taken from the captured, and 
 adjudged to the captors, the injustice, if any, as it respects 
 the act of the judge, consists in an error in him in disaffirm- 
 ing any title in the captured, but not in his awarding the 
 goods to the captors without any recompense to the cap- 
 tured. The official act, therefore, of the magistrate in ta- 
 king the goods intended by Rcccits, can be no other than an 
 act in the nature of an impress, and for which the insurer 
 is unquestionably to answer; and that to suppose an unjust 
 sentence a casualty, so as that the insurer is to answer for 
 it, is altogether fallacious j casualty being applicable only 
 to a fact possible, that it will, or will not happen, until it 
 either shall have happened, or, by the intervening happen- 
 ing of some other fact, shall have become impossible ever 
 to happen ; in each case, however, it equally ceases to be 
 casual, *and becomes certain, in the one that it has happened, * 238 
 
 and in the other that it cannot ever happen ; but that ca- 
 sualty is not applicable to the sentence of a judge on the 
 question, whether it is just or unjust, or to any ether mere 
 opinion, whether it is right or wrong, declared on any sub- 
 ject. For although it may be afterwards demonstrated that 
 the opinion is right, or that it is wrong, yet it never can be- 
 come either certainly right, or certainly wrong, as having 
 before been casual, whether it would be right, or whether 
 it would be wrong. It is true that the law has ordained 
 that every judgment, until reversed, shall be taken to be 
 certainly right ; if it should be reversed, it is then to be 
 taken as certainly wrong, and the judgment of rrvrr-^1 i<
 
 238 CASES IN ERROR IN THE 
 
 ALBANY, to be taken as certainly right. If the judgment of reversal 
 ^^^^^ should be reversed, the first judgment being thereby affirm- 
 
 Klcnheuvel ^ . g ^^ ^ ^ ^^ ^ certa ' m l y rignt? an( J fa e judgment 
 
 U Com d a T " SUr of reversal as certainly wrong ; but this legal or artificial 
 ' certainty is in no manner the same with that certainty exist- 
 ing in nature, and having as its opposite, casualty. Cer- 
 tainty, as opposed to casualty, is to be proved as a fact, to 
 have either physically happened, or become impossible to 
 happen, and not to be demonstrated as a proposition, 
 either morally right or morally wrong. The opinion whether 
 a sentence is just or unjust, may be ambulatory for ever. 
 Thus it is manifest, that the practice in France is erro- 
 neous ; and there is reason to .suppose it to have proceeded 
 from a misapprehension of the very authorities cited to 
 prove it warranted by law or principle. It, however, hav- 
 ing obtained, and being established in fact, in the nature 
 # 239 ^ a custom or usage, it ought, perhaps, *not to be chan- 
 
 ged there ; for both parties being apprized of it, they can 
 make their calculations, as to the risk and premium, accord- 
 ingly, and in that view of it, no injury will be produced by 
 it ; but it certainly can have no influence on the present in- 
 quiry, which is, as to the true interpretation of the~"contract, 
 according to universal law, independent of any positive lo- 
 cal practice whatever. 
 
 I will now briefly apply to the case of an insurance, the 
 law, as declared in the case of Hughes v. Cornelius, already 
 cited, it being the most ancient case in the books, as to the 
 effect of a foreign condemnation ; and the adjudication 
 which took place in it,, having never been questioned, the 
 case is now to be viewed as of the highest authority. 
 
 The judges, in that case, not only assume it, that a do- 
 mestic condemnation is to be received as conclusive, but 
 they suppose that, therefore,, a foreign condemnation ought 
 likewise to be so received ; they argue the conclusiveness 
 of the latter from the conclusiveness of the former ; they 
 express themselves, " as we are to take notice of a sentence 
 in the admiralty here, so ought we of those abroad in
 
 STATE OF NEW-YORK. 239 
 
 other nations, and we must not set them at large again." ALBANY. 
 It is true, the question was only as to the <rotf,and not as | Vanden heuTel 
 to the collateral effect of a condemnation ; but the reason- Unit J-, ngur> 
 ing with which the judges close their opinion, that a foreign Company. 
 condemnation is to be conclusive, as to the direct effect of " 
 it, namely, "that if the captured is aggrieved, he must 
 apply himself to the king and council, it being a matter of 
 government, he will recommend it to his liege's ;ambassa- 
 dors, if he see cause, and if not remedied, he may grant 
 ^letters of mart and reprisal," will equally apply, that it 
 is to be conclusive as to the effect of it on an insurance ; 
 and not only contains a sufficient answer to the objections to 
 receiving it as conclusive, as to such effect of it, but obvi- 
 ously supposes, that as to the several effects of a condem- 
 nation in respect to the collusiveness of it, there is no 
 difference between them. 
 
 The objections to receiving a foreign condemnation as con- 
 clusive against the assured, if I have rightly understood 
 them, and, indeed, as some of them are expressed by a 
 late English writer on the law of insurance, Park, 363. also 
 read on^the argument, are, " that the judges of a foreign na- 
 tion may po ssibly decide on their own municipal laws or 
 ordinances, contravening, or not forming a part of the law of 
 nations ;" and further, that the judge of a belligerent nation 
 cannot be viewed as standing indifferent between a neutral 
 nation and his own, in deciding on the interfering rights of 
 neutrals and belligerents, as depending on, or to be deduced 
 from, the law of nations. 
 
 That even the most enlightened and upright judges may 
 oftentimes, and in a great degree be under the influence of 
 a national partiality, can scarcely be denied ; such is hu- 
 man nature, "parum cavet natural But can neutral na- 
 tions say they are less susceptible of interest or passion, 
 than belligerent nations ? Is not the armed neutrality in 
 Europe, in 1780, to compel the British to acknowledge and 
 observe it as a principle of the law of nations, that free 
 ships make free goods, a proof of directly the reverse >
 
 240 CASES IN ERROR IN THE 
 
 ALBANY. Can our nation claim us, or can we claim ourselves, to 
 '^*" / *be more free than the judges of belligerent nations, from 
 
 Vandenheuvel 
 
 v. national partialities ? If the assured is warranted in sur- 
 
 Unked Insur. ... . . . ... . , . , 
 
 Company. mismg a partiality m the belligerent judge, is not the in- 
 surer equally warranted in surmising it in us, and, conse- 
 quently, will not justice between them as to the question, 
 and according to its just and equal merits, whether the 
 principles of the condemnation, as they relate to the law of 
 nations, are right or wrong, be alike to be suspected as 
 fallible, when declared by us, as when declared by the 
 judges of the belligerent nations? But a sufficient, and, 
 perhaps, the most proper answer, to the whole of the ob- 
 jection, is furnished in substance, by the judges in the opi- 
 nion above cited from the case of Hughes v. Cornelius, that 
 if a judge of one nation, in case of a capture at sea, will 
 assume novel and false principles, as principles of the law 
 of nations, or misapply, or unduly extend, or restrict such 
 as may have been already received and sanctioned, or mis- 
 interpret a treaty, or decide wholly on the particular regula- 
 tions of his own nation, repugnant to, or deviating from, 
 the law of nations, or by whatever other erroneous reason- 
 ings or means, considered as the principles relative to the 
 law in the case, he shall come to it as legal conclusion, that 
 the goods captured ought to be condemned as prize, either 
 as being enemy-property, or for breach of blockade, or as 
 being contraband of war, or for any other cause whatever, 
 every such condemnation would be a grievance on the cap- 
 tured, against which his nation is to claim and procure re- 
 paration for him. It would be perfectly a casus fcederis ; a 
 case where the nation, in virtue of the mutual obligation 
 * 242 *of allegiance and protection, between sovereign and sub- 
 
 ject, would be held to interfere and remonstrate against the 
 principles of the condemnation, and insist that they be dis- 
 avowed or renounced, and that reparation be made to the 
 captured ; who, instead of seeking for indemnity from an 
 underwriter, through the medium of a court of justice, 
 inust seek for it from the foreign nation itself, through the
 
 STATE OF NEW-YORK. 242 
 
 medium of the government or sovereignty of his own na- ALBANY. 
 
 tion. Vandeiiheuvel 
 
 I conclude with remarking that, possibly, as 1 have al- Unite J' Insur 
 ready intimated, an insurer may, by especial or express in- Company, 
 surance, take on himself the peril of an- unjust condem- 
 nation ; and something of that kind has been attempted, by 
 inserting a clause in the policy to the following effect : 
 " Warranted American property, and proof thereof to be 
 made, if required, in New-Tork only ;" but whether an in- 
 surance in this form, is sufficiently provisional or explicit ? 
 Whether it would be deemed to be against a condemnation 
 for any cause, or against a condemnation for some causes 
 only, and not others ; and if so, which the causes are, as 
 to be discriminated from each other I And especially, 
 whether the assured may abandon on the capture, or whe- 
 ther he is not bound to follow the goods into the court of 
 the captor, and there defend them ? Or, in short, whether 
 it is possible to devise a form, fully and distinctly providing 
 for all the cases and events which may occur ? Or, whe- 
 ther it is not unavoidable, that the whole must be put on 
 the simple footing of a -war premium, and a rvar risk; so 
 that all understanding, representation, or warranty, that 
 the property is neutral, and that the neutrality is to be pre- 
 served, and not forfeited, are to be altogether laid out of 
 the ^contract between the parties ; are questions which I * 243 
 
 suggest, as probable to arise, but on which it is not neces- 
 sary that I should express an opinion in deciding the case 
 at bar, it being a case of general insurance, and where^ 
 for the reasons I have assigned, my opinion is, that a 
 foreign, equally as a domestic condemnation, is to be re- 
 ceived as conclusive against the assured. 
 
 RADCLIFF, J. This was an insurance on the freight of 
 the Astrea, from Nerv-York to Corunna in Spain. The 
 policy was subscribed by the defendants on the 19th Novem- 
 ber, 1798, in consequence of a written representation from
 
 4,3 CASES IN ERROR IN THE 
 
 ALBAXY. the plaintiff, stating the ship, freight and cargo to be his 
 
 property. 
 
 lldc v! hc< The plaintiff was originally a subject of the United 
 
 U Com P Inj" r ' Netherlands and continued so till the 3d January, 1793, 
 
 -" " when he was naturalized as a citizen of the United States. 
 
 He must/ of course, have emigrated to America at least 
 two years antecedent to that period, and before the United 
 Netherlands were involved in the late European war, and 
 he is stated to have been personally known to the defend- 
 ants. 
 
 The vessel during the voyage was captured by a British 
 frigate as prize, carried to Gibraltar, and with her cargo 
 there condemned by the court of vice-admiralty, on the 
 ground of her " belonging at the time of her capture to 
 Spain, or to persons being subjects of the king of Spain, or 
 inhabiting the territories of the king of Spain, enemies of 
 Great Britain" From the situation of the plaintiff, and 
 the representation to the defendants, the insurance must be 
 considered as made upon American or neutral property. 
 The representation is to this purpose equivalent to a war- 
 
 * 244 ramy of that fact, and liable to the #same result. In my 
 
 view of the subject two questions arise. 
 
 1st. Whether, upon the terms of the contract, the plain- 
 tiff is entitled to recover ? 
 
 2d. Whether, in respect to the fact of neutrality, he is 
 concluded by the foreign sentence ? 
 
 If upon the contract he would be entitled to recover, and 
 is not concluded by the sentence, it is concede*! or offered 
 to be proven that the property was in reality neutral, or 
 such as was so represented to the defendants. 
 
 The second question has already been twice determined 
 tJnaryterm, in this court ; first, in the case of Ludlow and Dale,\ in 
 1799> which I gave no opinion, it being argued before I took my 
 
 * jpril tern,, seat; and, secondly, in the case of Goix and Lotv.% In 
 180 - the last, although the subject in some respects presented it- 
 
 self to my mind in a different light, I was content to ac- 
 quiesce in the opinion which had been previously delivered, 
 6
 
 STATE OF NE W-YORK. 
 
 
 considering the rule to have been definitively settled as far 
 as depended on this court. The magnitude of the r>ues- 
 tion has induced us to review it in this and other causes > 
 but notwithstanding the able and zealous discussion it has 
 received, I can perceive no new lights ou v.iiich to change 
 my opinion. 
 
 It may be premised, that in the course of the argument 
 much was said of the policy of the English courts in de- 
 ciding this question in favour of the insurer, and the policy 
 of our adopting a different rule. On a careful examination 
 of the English decisions, I cannot discover any ground for 
 this suggestion. They appear to rest on principles uncon- 
 nected with any motive of policy, and are indiscriminately 
 applied to their domestic as well as to foreign tribunals. 
 *If the consideration were proper in determining a rule for 
 ourselves, I am unable to perceive its force or applica- 
 
 tion. 
 
 In every instance of a foreign condemnation a loss must 
 necessarily happen. If the property be really American, 
 and insured here, the burthen must fall on some of our citi- 
 zens. It is then a question between them solely, and it 
 can never be politic or just to, seek to shift the loss from one 
 description of citizens to another. If the property be not 
 American, and insured in this country, an interested policy, 
 if such could be justified, would dictate an opposite rule of 
 decision, and lead to protect the American insurer against 
 the foreign owner, and thus determine the question against 
 the insured. 
 
 Again, if the property be American, and insured abroad, 
 the remedy is placed beyond the reach of our laws, and it 
 would be a vain presumption in the courts of this or any 
 other country to attempt to prescribe a rule for foreign tri- 
 bunals. But I dismiss this topic as unconnected with the 
 merits of the question. Opinions founded on policy are 
 necessarily various and fluctuating, and ought never to 
 actuate a court of justice. The question in every instance 
 must depend on its intrinsic merits arising from the nature 
 
 ALBANY. 
 

 
 245 
 
 CASES IN ERROR IN THE 
 
 Vandenheuvel 
 
 v. 
 
 United Insur. 
 Company. 
 
 * 246 
 
 ALBANY, of the contract and the general law of insurance, unless re- 
 strained by positive regulations. 
 
 In this view of the subject, the judicial determinations of 
 courts in different countries, as well as the opinions of in- 
 dividuals, may differ, but that difference, I apprehend, can 
 never, as has been imagined, become a matter of national 
 concern. The regular administration of justice, when con- 
 ducted with good *feith, can never implicate the govern- 
 ment with respect to foreign nations ; and whatever rule 
 may be established on this occasion, it can only be consi- 
 dered as affecting the rights of our own citizens ; as exist- 
 ing between them solely. If foreigners should at all be 
 interested, it must happen in consequence of their voluntary 
 act to seek insurance here, and they cannot complain of the 
 
 conduct of our courts, if they receive the same measure of 
 
 justice which is administered toothers. I therefore equally 
 lay out of view every argument derived from this source. 
 It is true there may be cases to interest the government in 
 behalf of its citizens. When losses are sustained by the 
 unjust sentences of foreign tribunals, there is no doubt but 
 the party injured is entitled to apply to his government for 
 redress, and that government, in case of palpable injustice^ 
 has a right to demand and enforce reparation from the sove- 
 reign of the aggressor it is even bound to do so, or in its 
 discretion to grant reprisals, or an indemnity to the injured 
 party. It then, and not till then, becomes a question of 
 national concern. As such, the delicacy and importance 
 attached to it, as to all national questions, would require the 
 government to proceed with caution, and in doubtful cases 
 rather to presume that justice has been done than to im- 
 peach the integrity of foreign courts. Thus it is held, that 
 it ought not to interfere but in cases of violent injuries, 
 countenanced and supported by the sovereign of the aggres- 
 sor, and where justice is absolutely denied in re minime 
 t Gro.de Jure, dubia by all the tribunals and in the last resort, f This is 
 sec. 4, 5. \ Coll tne language of the most approved writers on public law, 
 "vait *257 sfs anc * K P r fessed to be the practice of all civilized nations,
 
 STATE OF NEW-YORK. -247 
 
 and onef of those writers, perhaps the most eminent and ALBANY. 
 correct, exemplifies the maxim by referring to the princi- v "*'~ v 
 
 . . Vandenheuvel 
 
 pies maintained by the British government on a similar \. 
 
 .,,,,., i i r United Insur. 
 
 occasion. Hence it will be admitted, as a general rule, that Company. 
 every government is bound to respect the judicial decisions ( ^ 
 
 of foreign courts, and in the first instance to consider them port on the 
 
 Prussian me- 
 
 as just, and of course generally conclusive. But these rea- moral, 
 sons for the rule are strictly applicable to the government 
 alone when acting in behalf of its citizens. They cannot 
 apply to the conduct of our courts in the ordinary adminis- 
 tration of justice. We actually see that the courts of 
 France and England differ on the very question before us, v 
 
 and it has never been deemed a subject of national com- 
 plaint by either. I therefore think that it is not on the 
 ground of national interference or courtesy that such sen- 
 tences in our courts are held to be conclusive ; their con- 
 clusive quality depends on other principles. 
 
 1st. As between the insurer and insured, in case of a 
 representation or warranty of neutral property, I think a 
 condemnation in a foreign court of admiralty, whea founded 
 on the want of neutrality, operates definitively against the 
 insured according to the terms and effect of the contract 
 itself. During the existence of a maritime war, the state 
 of commerce is necessarily more or less precarious. Neu- 
 trals are not exempt from this inconvenience, but neutrality, 
 if respected, affords a great advantage. The neutral mer- 
 chant, when he effects an insurance, may either retain the 
 benefit of his neutrality, or, if diffident of its security, he 
 may relinquish it, and specially insure his property against 
 every possible loss. If he *insure the property as neutral, 
 he thereby signifies his intention to avail himself of his # 248 
 
 neutrality, and of course will pay a less premium ; but. in 
 doing this it must follow that he takes upon himself the risk 
 of that neutrality. He thus far divides the risk, and is to be 
 considered, his own insurer. He cannot, by paying a less 
 
 3 D
 
 248 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Vandenheuvel 
 
 v. 
 
 United Insur. 
 Company. 
 
 * 249 
 
 premium, enjoy the benefit of his neutrality and at the same 
 time the benefit of an insurance for the want of it. 
 
 It is obvious that every such representation or warranty 
 is made, not with a view to an examination of the fact in 
 our own courts, but in reference to the parties at war, and 
 to the danger of capture and condemnation abroad. This 
 is the direct object of the stipulation. It cannot be limited 
 to the naked position that the property is in fact neutral. 
 It may be so and yet possess none of the indicia or evi- 
 dences of neutrality. These evidences, it is not denied, the 
 insured undertakes shall accompany it, and I think he equally 
 undertakes that it shall enjoy the privileges of neutrality. 
 
 There appears to me no room for the distinction that the 
 insured engages to furnish the evidences merely, and at the 
 same time not to maintain his neutrality when it may be 
 called in question. If the proper evidences accompany the 
 subject, it is not legally to be presumed that its neutrality 
 cannot be maintained. Whatever abuses may occasionally 
 be committed we cannot act judicially, nor suppose the par- 
 ties to have acted on the presumption of injustice in foreign 
 courts. The idea is inadmissible when applied to the courts 
 of a civilized nation, and if contemplated by the parties 
 ought at least to have been *made the subject of a special 
 provision in the contract. No doubt the underwriter may, 
 by a special insurance, and the admission of a particular 
 mode of proof, make himself liable even for the unjust sen- 
 tences of foreign courts ; but he ought never to be held 
 liable for such sentences whdn proceeding on the very 
 ground assumed by the insured himself. If neutrality can 
 be called a risk, that risk is necessarily implied in the war- 
 ranty ; and the insurer, by the contract, is liable only to the 
 remaining perils incident to the subject, allowing it to be 
 neutral and to preserve that character. He engages for 
 nothing more ; and his premium must be deemed propor- 
 tioned to those perils only. The effect of the representa- 
 tion or warranty, can, I think, on the face of the contract 
 itself, admit of no other interpretation*
 
 STATE OF NEW-YORK. 249 
 
 If this reasoning be correct, it follows, that the insured, ALBANY. 
 
 having represented or warranted the subject to be neutral, ^~*~**s 
 
 - . ,_ . | f Vandenheuvel 
 
 can never, on the terms of the contract itseU, recover 
 
 against the insurer when it appears to have been con- U cjpJS! r " 
 
 demned on a ground which denies its neutrality. It is 
 
 immaterial, in this view of the subject, whether the con- 
 demnation be just or unjust ; it is sufficient if it proceed 
 on the want of neutrality. 
 
 2. The question in the English courts does not appear to 
 have been examined in this light. They have been content 
 to apply to the decisions of foreign courts of admiralty, a 
 principle which has long been received and adopted in their 
 domestic courts. They place them on the same footing, 
 and consider the collusiveness of their sentences as ne- 
 cessarily resulting from the right of jurisdiction. In relation 
 to their own courts the rule has undoubtedly been *long es- * 25O 
 
 tablished, both before and since the revolution, and it is 
 not confined to courts of peculiar or exclusive authority, 
 but applies to all. Not only the sentences or judgments 
 of their ecclesiastical and other courts, where they possess 
 exclusive cognisance, but the decisions of all their courts 
 in cases where they have concurrent jurisdiction are deem- 
 ed to be equally conclusive. Indeed, a contrary position 
 would involve the absurdity of a power competent to de- 
 tide, and at the same time ineffectual in its decision. 
 
 They have also, in a variety of cases, extended the rule 
 to foreign courts of a different description. Thus, a bill 
 to be relieved against actions of trespass for seizing goodsf y <*** 
 in an island of Denmark, was dismissed in chancery, be- 
 cause sentence was given in the court of Denmark on the 
 seizure. So in case* of a bill of exchange, the acceptance us r^g. 
 of which was vacated in a court of Leghorn, Lord Chan- ^ c. ig 
 cellor King held not only that the cause was to I '- ncr> (1720 .) 
 
 mined by the lex loci, but the acceptance having been vaca- 
 ted by a competent jurisdiction, he thought the sentence 
 conclusive, and that it bound the court of chancery m En, 
 Zland. So by Lord HarMck^ if a marriage be declared ^ is
 
 250 CASES IN ERROR IN THE 
 
 ALBANY. valid by the sentence of a court in France having proper 
 
 v-^-v-w jurisdiction, it is conclusive, and he held " that this was 
 
 e 'v. 1C so, although in a foreign court, by the law of nations ; for 
 
 U CompanJ Ul ' otherwise the rights of mankind would be very precarious 
 
 " and uncertain. 
 
 This doctrine applies, with peculiar force to the senten- 
 ces of courts of admiralty in relation to prize, and of every 
 court proceeding on the general law of nations as the basis 
 of its authority. While the capture *'of enemy-property 
 is admitted to be the right of a belligerent party, the insti- 
 tution of courts to try the validity of such captures must 
 also be admitted. '1 hey exist in every country, and are 
 established in our own. The objects of their institution 
 are every where the same. They are invested with similar 
 powers, pursue the same principles, and profess to be go- 
 verned by the same system of lawb, unconnected with the 
 municipal regulations of any country. In this manner they 
 form a separate and independent branch of judicature, and 
 although uncontrolled by a common superior, their deter- 
 minations, while they act with good faith, will generally be 
 uniform and consistent. Considering them in this light, 
 acting on the same principles, and governed by the same 
 law, they come within the reason of the rule which is ap- 
 plied to domestic tribunals of concurrent jurisdiction, and 
 their decisions ought to possess equal force and autho- 
 rity. 
 
 But another principle of English and American jurispru- 
 dence arising from the nature of the subject, and the sys- 
 tem of our courts, appears to me strongly to enforce this 
 doctrine. The question of neutrality is involved in the 
 general question of prilze; it is a necessary incident, and 
 the want of neutrality forms the principal ground of cap- 
 ture and condemnation. It is a settled maxim that the 
 courts cf common law have no jurisdiction on the ques- 
 tion of prize ; it may collaterally arise, but ex directo it is 
 not within their cognisance ; it belongs solely and exclu- 
 sively to the courts of admiralty as courts of prize. This
 
 STATE OF NEW-YORK. 
 
 is established by a current of authorities both ancient and ^J^J^ 
 modern, and the reasons on which they are *founded are Vandenheuvel 
 satisfactory and conclusive. If then the courts of admi- United' Insur. 
 rally have exclusive jurisdiction of the principal question Company. 
 of prize, which necessarily includes that of neutrality, and # 252 
 
 the courts of common law have no jurisdiction, it must 
 follow that the decisions of the former cannot be reviewed 
 bv the latter, and that whenever they occur directly or col- 
 laterally, they must like the judgment of other courts of pecu- 
 liar jurisdiction, be considered as conclusive. If they were al- 
 lowed to be reviewed, in what manner could we ascertain the 
 merits of the former decision ? Is the same evidence in 
 our power, or in the power of the parties to obtain ? The 
 insurer is a stranger to the whole transaction ; the circum- 
 stances are unknown to him ; the proofs, if not detained 
 abroad, are in the hands of his adversary ; they are gene- 
 rally concealed, or may, with the greatest ease, be sup- 
 pressed. How could he compel their production, or bring 
 to light the merits of the case ? To avoid these difficulties 
 are we to be governed by the written depositions taken in 
 the admiralty abroad, or could they be received as evi- 
 dence ? It is well known that the rules of evidence in those 
 courts are different from our own. By what rules are we 
 to be governed ? If exclusively by our own, the result in 
 our courts may differ, and yet both judgments as to the 
 evidence on which they are founded be equally just. Al- 
 lowing even that the insured engages merely to furnish the 
 evidence of this neutrality in foreign courts, that evidence 
 must surely be understood to be of a nature usually recei- 
 ved and demanded in those courts ; for it is there only 
 that it can be material. The engagement relating to such 
 evidence of course excludes *the idea of a decision upon * 253 
 
 any other, and the interference of a court of common law, 
 requiring a different mode of proof, and acting on differ- 
 ent principles, would contravene one of the direct objects 
 of the stipulation. In every shape, therefore, in which 
 this subject can be viewed, insuperable difficulties present
 
 CASES IN ERROR IN THE 
 
 ALBANY, themselves, and evince the propriety of considering the 
 v ^~ v ^^ foreign sentences as final. 
 
 Vandenheuvel '"'' 
 
 In England this question is at rest by direct decisions on 
 Company/ the point, but these decisions were principally made during 
 "' the period of our revolution, or subsequent to it j they pos- 
 
 sess, therefore, no conclusive authority, but under similar 
 circumstances are to be regarded as we regard the decisions 
 of the courts of all enlightened nations, high evidence of 
 the law on the subject. 
 
 The cases in the English courts previous to the revolu. 
 tion are, however, not wholly silent on the question j so far 
 as they relate to the -general principle that the sentence or 
 judgment of any court of competent jurisdiction is to be re- 
 ceived as conclusive, they have already been noticed. 
 
 There are some which immediately apply to the sentences 
 of foreign courts of admiralty. The first in which the ef- 
 fect of such sentences appears to have been immediately 
 1 1 Fern. 2(. 2 considered, was the case of Newland v. Horseman ,f in 
 (1681.) chancery. That was on a question of freight, which had 
 
 been tried in the court of admiralty at Barcelona, where an 
 interlocutory judgment was given. Lord Chancellor Not- 
 tingham declared, that he would not slight their proceed- 
 ings beyond sea, and if the damages had been there ascer- 
 tained, or a peremptory sentence given, the same should 
 *^'* have concluded all parties. *The next is the case of 
 
 % Carth. 32. 2 Hughes v. Cornelius,^ in which, during a war between 
 (1688) ' ' France and Holland, an English ship was taken by the 
 French under colour of being Dutch, carried into France 
 and there condemned by the court of admiralty as a Dutch 
 prize. Afterwards an Englishman bought this ship, and 
 brought her into England, where the right owner instituted 
 an action of trover for the ship against the purchaser. This 
 matter being found specially, the defendant had judgment, 
 "because the ship being legally condemned as a Dutch 
 prize, this court will give credit to the sentence of the 
 court of admiralty in France, and take it to be according to 
 right, and will not examine their proceedings, for it would
 
 STATE OF NEW-YORK. 254 
 
 be very inconvenient if one kingdom should, by peculiar ALBANY, 
 
 laws, correct the judgments and proceedings of the courts ^^fi 
 
 of another kingdom." In the Theory of Evidence,} a book Unit J-^ 
 
 considerably ancient, it is stated, that " in an action on a Company 
 
 policy of insurance, with a warranty that the ship was f An lj ~^ L 
 
 Swedish, the sentence of the French admiralty condemning printed in mi. 
 
 the ship as English property was held to be conclusive."! * BulL 24*. 
 The same case is repeated in hcec verba by Mr. Buller, in 
 his Nisi Prius, and has received the sanction of his name. 
 He cannot be understood to refer to the case of Hughes and 
 Cornelius, as has been suggested, for that was not of a 
 Swedish ship, nor on a policy of insurance. There is still 
 
 another case of Fernandez v. De Costa, in 4 Geo. III. be- $ park, irs. 5.1 
 
 ... , edition, not else- 
 
 fore Lord Mansfcld, at Nist Prius, in which there was a where rep0 rted. 
 warranty that the ship was Portuguese, and being con- 
 demned as not being Portuguese in the admiralty courts of 
 France, the sentence of condemnation appears to have been 
 considered as *decisive in favour of the insurer. In this * 255 
 
 case, it seems, the law was received to be settled as to the 
 effect of the sentence, and the inquiry was confined to as- 
 certain the ground on which it went. 
 
 In answer to the two former of these cases a distinction 
 has been taken between the direct and collateral effects of a 
 foreign sentence, that it is conclusive only as to the trans- 
 fer of property for the benefit of all claiming under it, but 
 not so as to collateral parties. I do not perceive the force 
 of this distinction. If well founded it appears to me to 
 operate in favour of the insurer ; the insured, the professed 
 owner of the property, must certainly be a direct party to 
 the sentence, if any one is a party ; he, therefore, if any 
 one, must be concluded. Besides, from the nature of the 
 proceedings in courts of admiralty, which are in rem, all 
 persons are considered as bound. The forms and manner 
 of proceeding in those courts are founded on the idea of 
 notice to all the world, and the operation of their sentence* 
 is deemed to be equally extensive. The distinction now 
 attempted, I do not find to be supported by any authority
 
 255 
 
 ALBANY. either before or since the revolution. Indeed, in England, 
 
 v *^~ v " x "' / the contrary rule prevails both with respect to their domes- 
 Vandeaheuvel , , , , , 
 
 T. tic and to foreign courts. It is general, that, " whenever 
 
 a matter comes to be tried in a collateral way, the decree, 
 sentence, or judgment of any court, ecclesiastical or civil, 
 
 having competent jurisdiction, is conclusive evidence of 
 f Them of EV. such matter."f It is not material that the parties to the 
 37. Bull 244. guit s y lould have been p art i es to tne sentence ; die only 
 
 ad ' qualification of the rule, I believe, is to be found in Prudham 
 
 there 
 
 Black Rep 977. v> phUifj^t where Chief Justice Willes, in the case of a judg- 
 
 ? Jimo, 763. ~. ... 
 
 ment alleged to be obtained by fraud in the ecclesiastical 
 * 256 *court, took a distinction in favour of a stranger, who could 
 
 not come in and vacate or reverse the judgment, and, there- 
 fore, must of necessity be permitted to aver the fraud ; but 
 he held that the party to the suit was bound by the sen- 
 tence, in relation to all other persons, and could not give 
 evidence of the fraud, but must apply to the court which 
 pronounced the sentence, to vacate the judgment. It is, 
 therefore, always sufficient, if the one against whom the 
 sentence is offered, was a party. 
 Doug. 544. I forbear particularly to examine the subsequent cases,$ 
 
 Park, 559. 361, ... . r 
 
 362 three ca- during our revolution, and since, wnicn, it any doubt could 
 before exist, have unequivocally settled the law in England, 
 The principle on which they are founded, is, I think, suffi- 
 ciently supported by the antecedent cases. The English 
 courts appear to have viewed those cases in the same light, 
 and without treating the question as res Integra have 
 adopted the rule they prescribe. Indeed, from the time of 
 Charles II. to the present period, it appears to have re- 
 ceived a steady determination by the highest authorities in 
 their courts. With them it seems never to have been much 
 questioned, and, I conceive, the law with us must be deemed 
 to be equally settled. It may be added, that the same 
 
 f ZDalL point arose in Pennsylvania,^ and, although not directly 
 
 decided, Judge Shippen inclined to consider the foreign 
 
 sentence as conclusive against the insured, 
 
 j-f Emengm, , . , 
 
 457 to 404, In France* the law is undoubtedly otherwise settled .ft 
 
 Vol. 112. art. , 
 
 48. See also Their courts have adopted a different rule at an early period, 
 
 Jfocr. ?>. 54.
 
 STATE OF NEW-YORK. 
 
 and the authorities on which they proceed, in cases of new 
 impression, would merit great attention and respect ; but 
 independent of the circumstance that they confer no obli- 
 
 _ . . , , , . , i 
 
 gation on our *courts, I think they do not comport with the 
 sound interpretation of the contract, nor with the system of 
 our iurisprudence. The English courts, on questions of 
 commercial law, are to be regarded as at least equally en- 
 lightened and correct, and their authority, before the revo- 
 lution, repeatedly sanctioned and confirmed by subsequent 
 determinations, imposes an obligation which the former do 
 not possess. 
 
 In every light, therefore, in which I have been able to 
 view' the subject, I am of opinion, that the foreign sentence 
 ought to be deemed conclusive against the plaintiff's right 
 to recover on the policy. 
 
 1. From the nature and import of the contract itself, by 
 which I consider the insured to have guarantied his neu- 
 trality, and undertaken to maintain it, and, of course, liable 
 to all the perils attending it. 
 
 2. Because the condemnation is to be considered as con- 
 clusive evidence of the want of neutrality, it being the sen- 
 tence of a court, net only of a cvmptlent but exclusive 
 jurisdiction on the subject. 
 
 KENT, J. This cause is on a policy upon the cargo and 
 freight of the ship Astrea. 
 
 The facts are these. 
 
 The voyage was from Netv-Tork to Corunna, in Spain, 
 and the ship was described as the good American ship the 
 Astrea ; and previous to the time of signing the policy, the 
 plaintiff, in a written application for that purpose, to the 
 respective defendants, represented the property to be his 
 ozvn. The ship was captured on her voyage by a British 
 frigate, carried into Gibraltar, and by the court of vice-ad- 
 miralty there, the ship and cargo were condemned as lawful 
 prize, as belonging, at *the time of the capture, to Spain, 
 er to persons, being subjects of the king of Spain, or inha- 
 
 2 E 
 
 ALBANY. 
 
 Vandenheuvet 
 
 v, 
 
 United Insur. 
 
 * 257 

 
 258 CASES IN ERROR IN THE 
 
 ALBANY. biting within the territories of the king of Spam> enemies lq 
 ****~ y ~*~' the king of Great Britain. 
 
 V audenheuvel , . , , , , , . 
 
 If the plaintiff is not to be adjudged concluded by the 
 U Com r lny Ur ' sentence, it is then admitted in the case, to be a fact, that 
 
 """ the ship and cargo were the plaintiff's property. 
 
 The plaintiff was born a subject of the United Netherlands, 
 and became a citizen of the United States, on the 3d day of 
 June, 1793, and has since resided in the city of New-Tor k. 
 Upon these facts, the whole question between the parties 
 turns upon the effect of the sentence of condemnation. If 
 that is to be deemed conclusive proof of the facts therein 
 stated, the policy is void, by reason of a breach of warranty, 
 and by reason of a material misrepresentation, which led the 
 underwriters to compute the risk upon circumstances which 
 did not exist. 
 
 The sentence substantially falsifies the representation, for 
 the persons, stated in the sentence as owners of the property, 
 and the plaintiff, were evidently understood and intended to 
 be different persons. 
 
 After the' opinion which I have already given upon the 
 t January, 1799. question, in the cases of Ludlow and Dalefi and of Goix 
 * jtpril, 1800. and LowJ. I might well be excused from entering again 
 upon the subject, unless, in the mean time, I had seen suffi- 
 cient reason to change that opinion. The question has, 
 indeed, been since presented in a way the most propitious 
 to a liberal reconsideration of its merits. The authorities, 
 and the principles they contain, have been examined at the 
 t 259 bar #with a diligence and ability that have greatly aided 
 
 our researches, and thrown light on the avenues to truth. 
 It seems, then, in a degree due to the occasion, to the 
 elaborate and anxious care which has been bestowed on the 
 subject, that I should once more, but very briefly, and with- 
 out recapitulating what I have before said, take some fur- 
 ther notice of the argument. 
 
 The true point in controversy is not what ought to be, 
 but what in fact -was, the legal effect of a foreign sentence 
 of condemnation, in a case like the present, by the common.
 
 STATE OF NEW-YORK. 259 
 
 law, as understood and settled when our revolution began. ALBANY. 
 I shall confine myself in this opinion, to the examination of v^^hl^ 
 
 this Single point. United' Insar. 
 
 Let us first inquire what is the effect of a domestic judg- 
 ment. 
 
 It is laid down as a general rule,f that whenever a matter f #?</fer's JV. P. 
 
 c i>44,iJi5. JLmb. 
 
 comes to he tried in a collateral way, the final sentence ot 751. Freeman, 
 
 . , -84. Sir. 733. 
 
 any court, having competent authority, is conclusive evi- Hm . s . Lnrj 
 dence of the matter so determined, in all other courts, hav- Tract *> 4C 
 ing concurrent jurisdiction ; for, it were very absurd that 
 the law should give a jurisdiction, and yet not suffer 
 what is done by force of that jurisdiction to be full proof. 
 
 It has, however, been made a doubt by some,J whether \%% r ^ 77 - fl 
 such sentences upon jurisdictions, having concurrent autho- 
 rity, be conclusive, or only prima facie evidence of the fact, 
 although I think the better opinion is in favour of their 
 conclusive effect. 
 
 But if a matter belongs to the jurisdiction of one court so 
 peculiarly as that other courts can only take conusance of 
 the same subject indirectly and incidentally, the rule is then 
 more extensive and *unequivocal.f The latter courts are * 260 
 
 ...... , t fJnrqrave s 
 
 bound by the sentence of the former, until it be reversed, La-w Tracts, 
 
 J -r u r .1 *5a. 457. 470. 
 
 although it be in a suit in dwcrso mtuitu, it it be directly 477 . 
 determined, and must give credit to it universally, and 
 without exception. 
 
 This rule has been illustrated in the case of sentences iti 
 the ecclesiastical courts touching marriages and wills ; in 
 the exchequer touching the condemnation of forfeited 
 goods ; and in the admiralty touching prizes, and in all of 
 which cases, those courts have exclusive jurisdiction. 
 
 In respect to the ecclesiastical courts, the authorities are 
 numerous, and have spoke a uniform language from the 
 time of Lord Coke to the present day. In two cases, to be 
 found in his reports,! the judges determined that they M rc.w. a. " 
 were bound (although it was even against the reason of the 
 law) to give faith and credit to the sentences of the eccle- 
 siastical courts, for cuilibet in sua arte ferity est credenclwn;
 
 260 CASES IN ERROR IN THE 
 
 ALBANY. and that, if the ecclesiastical judge showeth cause of his 
 v ^*~ v '^* > ' sentence, yet, forasmuch as he is judge of the original mat- 
 
 Vandenheuvel 
 
 v. ter, they shall never examine the cause whether it be true 
 
 United Insur. 
 Company. Or not. 
 
 " " ""; All the subsequent cases say the same thing.f 
 
 freeman, 83. This conclusive effect of the sentences of the spiritual 
 
 Carth. 225. 1 ,. , . . 
 
 Sulk. 290. skin, courts applies to strangers as well as to parties and privies. 
 ijff; jimb.m'. They are conclusive evidence of the fact against all the 
 
 world.J In one of the cases from Coke and in the case of 
 u57 Hatfield and Hatfield^ which was finally determined on 
 471. BuLJV.P. appeal in the house of lords, in 1725, the sentence was held 
 
 245 
 
 4 Co. 29. a. binding on strangers. In a case before Lord Hardwicke^ 
 
 "ff Str.GQl. ZBro. r , . ,, T . TTT-U o-j. 
 
 P. C. 62. s. C. and in a case before Chief Justice Willes^]"\ strangers were 
 
 jbnA^rteT "^allowed to use the sentence against those who were parties, 
 
 *" 261 The same doctrine is established in respect to condemna- 
 
 tions in the exchequer. This fully appears from the case of 
 
 1 2 Slack. Rep. Scott and Shearman^ in which it was held by Mr. Justice 
 
 977 - Blackstone, in a very elaborate argument, and in which all 
 
 the court concurred, that the condemnation in the exchequer 
 
 was conclusive ; not only in rem but in personam ; not only 
 
 in the property vested in the crown, but as to every other 
 
 collateral remedy ; not only as to the party to the suit but 
 
 as to the right owner, although no party, and against all the 
 
 world. The seizure itself was held to be notice to the 
 
 *Tl.is law, as owner.J The law gives implicit credit to the judgments of 
 
 \\rm&\, C ^burnj. competent courts, and it was afterwards observed by Chief 
 
 Justice De Grey, that the decision in that cause had been 
 
 2 Black. Rep. the uniform law for above a century. 
 
 U7G - It seems to be every where taken for granted, that the 
 
 Ti 1 Show. 6. 3 sentences of admiralty courts are equally final.^j 
 
 i/ar'r. ' 467."% The rule, then, I have mentioned in respect to domestic 
 
 J \ d ( ''o R IVA' S c judgments, has received all the sanction that a continued 
 
 m nir' S ' S' train f deC1S ' 10nS Can P ossiWv S 1VC it: ' 
 
 if. \Ve are next to see whether the same rule, as appearing 
 
 to be directed by the same reason, has not been applied with 
 equal uniformity to foreign judgments, 

 
 STATE OF NEW-YORK. 
 
 261 
 
 ALBANY. 
 
 UnU ' Insur> 
 Company. 
 
 nam. 473. 
 
 * 262 
 
 The most ancient case to be met with in the English 
 hooks, is the case of Hughes and Cornehus:\ Although the 
 special verdict in that case falsified the sentence of con- 
 demnation in the French admiralty, yet the court admitted 
 the sentence to be true ; and although the suit was trover, 
 in which, nothing but *the direct effect of the sentence 
 came necessarily into view, yet the court, in giving judg- 
 ment, laid down this general doctrine, applicable equally to 
 collateral effects, viz. That they ought to give credit to 
 foreign sentences of admiralty, and take them to be accord- 
 ing to right, -and not to examine their proceedings ; that this 
 was agreeable to the law of nations, and sentences in courts 
 of admiralty ought to bind generally according to that law ; 
 that if the party was aggrieved he ought to petition the 
 king, it being a matter of government, and if there appear 
 cause, he will instruct his liege ambassador, and on failure of 
 redress, will grant letters of reprisal. 
 
 This decision, and the principle contained in the judg- 
 ment, were afterwards cited and sanctioned by Lord Holt, 
 and again by Lord Hardwickc, and, lastly, by professor 
 Wooddeson, in the course of his Vinerian lectures. J * ^jfj 
 
 A similar doctrine has been repeatedly advanced, and Woodd. 456 
 whenever the occasion arose. Instances of this are to be 
 
 met with in the successive decisions of the chancellors, Not- 
 
 TT j i x 
 tingham, King and Hardwicke^ 
 
 In the case of Gage and Bulkeley^ before Lord Hard- 
 wicke, Sir D. Ryder, who was then attorney-general, laid 267 
 down the rule in its fullest latitude, and as being well esta- 
 blished. He said that foreign judgments were received in 
 England as conclusive evidence, and had the same regard 
 paid to them, for the sake of justice and public convenience, 
 as sentences given in the courts of admiralty or ecclesiasti- 
 cal courts at home ; and he cited the case of Hamden and 
 The East-India Company, which was determined upon 
 appeal in the house of lords, and on the *ground, that the 
 sentence of a Dutch admiralty was conclusive evidence, it 
 being res jud-icata, ar.d could not be unravelled or re- ex- 
 
 1 Vern. 21. 
 -z str. 733. 

 
 263 CASES IN ERROR IN THE 
 
 ALBANY. amincd. Although what he said was merely arguendo, yet; 
 x>x ~ v ^"' coming from such an eminent counsel, and appearing to be 
 
 Vanclenheuvel . . 1-1 c 
 
 . taken tor granted by the court, it is pretty good evidence or 
 
 any" 1 '' the prevailing sense on the subject. 
 
 Here we may also notice the answer of the judges (of 
 
 which Sir D. Ryder was one) to the Prussian memorial, as 
 being a document of very high authority, and bearing 
 
 ** id - on the question before us.f It is there stated, that prize 
 courts proceed contrary to the law of nations ; that in every 
 country there is a court of review, to which the parties who 
 think themselves aggrieved, may appeal ; that if no appeal 
 be offered, it is an acknowledgment of the justice of the 
 sentence by the parties themselves, and is conclusive ; that 
 captures have been immemorially judged of in that way in 
 every country of Europe, and with the approbation of the 
 powers at peace ; that every other method of trial would be 
 impracticable and unjust, and that, if prize courts proceed 
 contrary to the law of nations, and treaties in re minime 
 dubia, then, and not till then, the neutral has a right to com- 
 plain. 
 
 This answer, and the principle contained in the case of 
 Hughes and Cornelius, may be considered as a correct com- 
 mentary on the law of nations, relative to the effect which 
 judicial sentences in one country are to receive in the courts 
 
 *, I 3- <> f another.J 
 c. 2. sec. s. Vatt. After such a repeated and general recognition of the 
 
 1. 2. sec. 84, 85. . . r /f 
 
 Martens, ? 104. principle, we are prepared to expect an application o 
 jtaie?& that is all that is now wanted) to the case precisely the 
 
 I 35 ' same with the one before the court. *We do, accordingly, 
 
 5jr 2fi4< i 
 
 $ P. 244. find it stated as law, in Butter's Nisi Prtusft that 
 
 tion upon a policy of insurance, with a warranty that the 
 ship was Swedish, the sentence of a French admiralty court, 
 condemning the ship as English property, was held conclu- 
 sive evidence. The same case was previously stated in the 
 [ P. ST. This Theory of Evidence^ to have been decided, w&Park gives 
 lifted bTroi 1 .' 15 ' us a particular report of another decision of the like kind, 
 before Lord Mansfield, at the sittings after Hilary term, 4
 
 STATE OF NEW-YORK. 2G4 
 
 Geo. III. in the case of Fernandez and Da Costa. A ship ALBANY. 
 was insured, and warranted a Portuguese; she was libelled ^^h^l 
 and condemned in a French court as not being Portuguese, ^^J-j^ 
 and although the plaintiff gave partial evidence of her being Company. 
 Portuguese, yet, when the defendant produced the sen- 
 tence, it concluded the cause. 
 
 Where then can we discover a doubt, as to what was the 
 law at the time of our revolution ? Upon what ground can 
 we pause even to raise a conjecture, that the court of king's 
 bench, in the case of Bernardi and Motteuxfi (being the t DoBJ . 575. 
 first case after the year 1776,) created a new rule, when 
 even the counsel for the plaintiff, at the very outset of the 
 argument, admitted, that if the sentence of the French ad- 
 miralty had proceeded on the ground of the property not 
 being neutral, the plaintiff would have been concluded. 
 
 Nor do I think the English decisions, since the year 
 1776, are to be thrown wholly cut of view, although they 
 are confessedly of no binding authority. 
 
 In addition to the consideration of the well known cha- 
 racter of their judges, we are to observe that their *tribu- * 265 
 nals and ours, study and pursue the same code of law and 
 equity, and they certainly are not more liable than we our- 
 selves, to misapprehend the authentic records and oracles of 
 the common law. If the question, therefore, were otherwise 
 involved in doubt, a series of uniform decisions in the En- 
 glish courts, for the last twenty years, cannot but be consi- > 
 dered, and that too, without being unduly addicted jurare 
 m verba magistri, as a very sufficient cause to remove it.J **>^ ^ 7 
 Having thus ascertained, at least to my satisfaction, that m-IMg 
 by the law, as it stood in 1776, a sentence of condemna- ** v. ^ * 
 tion abroad, on the direct point in question, is, in a colla- ;> w/ m( y^ cy 
 teral suit by the insurer, conclusive evidence of a breach of ^^ 55U> 681, 
 his warranty, so that no evidence can be admitted to impeach - ^ Dl 
 it, I have done all that I undertook to do. I might here rest 
 the argument. Whatever opinion may be entertained as to 
 the justice or policy of the rule, is not to the purpose. 
 Our duty is, jus dicer e, nsn jus dare. I may be mistaken,
 
 265 
 
 ALBANY, but it appears, however to me, that all the reasons which 
 r> """' have established the rule, relative to domestic courts, ha- 
 
 Vanuenheuvel 
 
 v. ving exclusive jurisdiction of a subject, apply with peculiar 
 
 United Insur. ~ ... , 
 
 Company, jorce to a case like the present. 
 
 """"" Courts of law are inadequate to determine the ques- 
 tion of prize, and to overhaul the sentence is in reality try- 
 ing the question. The circumstances that go to constitute 
 prize, are oftentimes complex. The property may be 
 deeply masked, the papers double, or every requisite paper 
 may be regular, and yet the conduct of the master such as 
 to cause the property to lose its privilege of neutrality. 
 * 266 None but *a court clothed with the mode of proof, the 
 
 summary powers, the enlarged discretion of a prize court, 
 can seize and sift every circumstance. The maritime law 
 of Europe has, therefore, very wisely established a pecu- 
 liar court, for the exclusive jurisdiction of prize. It is 
 there that the assured should vindicate his property, and 
 if aggrieved, he should carry his appeal to a court of re- 
 view. There is great weight in the observation, that this 
 is the true construction of the engagement, on the part of 
 the assured. By representing, or warranting his property 
 to be neutral, the assured undertakes, not only that it is so 
 in fact, but that it shall be entitled to neutral privilege, 
 f 8 Durnf. 234. throughout the voyage.^ To construe the engagement 
 ranty of neu'tra- to be less than that, is in a great degree to render it idle and 
 the' "hfp * shall nu S ator y* " To implement this warranty," says a very 
 maintain a neu- sensible writer on insurance, (Millar, p. 496.) " the shin or 
 
 tral conduct and 
 
 not forfeit it du- goods must be neutral in conception of that nation from 
 
 ring the voyage. L . J 
 
 whom danger of seizure is apprehended.'"* On such a re- 
 presentation or warranty, the insurer lays out of view the 
 risk of loss, by reason of the non-neutrality of the proper- 
 ty. That risk the assured takes upon himself, and having 
 in his hands, exclusively, all the means to do it, he is 
 bound to make good his averment, whenever, and where- 
 ver the neutrality of the property, or its privilege as such, 
 is called in question. If he fails to do it, he must bear 
 the loss, and if foreign sentences were liable to be re-exami-
 
 STATE OF NEW-YORK. 
 
 ned here, I should still incline to think that in the case ot 
 an express warranty, the assured, and not the insurer, 
 takes upon him the risk of the condemnation, right or 
 wrong. Whether that would or would not be the *case, 
 on a representation merely, I am not as yet prepared to say, 
 and, therefore, in those suits, where there was no warranty, 
 but only a representation, I should choose to rest my opi- 
 nion entirely on the first ground, of the faith due to the fo- 
 reign sentence. 
 
 The result of my opinion accordingly is, that the plain- 
 tiff is not entitled to recover in this cause, beyond the re- 
 turn of his premium. 
 
 On the judgment rendered in conformity to the forego- 
 ing opinions, the now plaintiff Vajidenheuvel brought his 
 writ of error, insisting that the judgment was erroneous ; 
 
 1. Because there was no warranty in the policy, and, 
 therefore, the defendants assumed every possible risk. 
 
 2. Because the order for insurance, if it amounted to a 
 representation, must have been understood by both parties 
 merely as a representation that the property belonged to the 
 plaintiff, not that it was neutral or American. 
 
 3. Because the sentence of condemnation does not nega- 
 tive the representation ; and, 
 
 4. Because, if the representation amounted to an explicit 
 warranty of the neutrality of the property, the jury have 
 found it to be true, and the sentence ought not to be receiv- 
 ed as evidence to the contrary. 
 
 1. We say, there being no warranty in the policy, the un- 
 derwriter took upon himself every hazard, and particularly 
 those arising from the character and quality of the property. 
 
 The policy on record contains nothing like a warranty of 
 any kind. Mr. Vandcnheuvelis not styled a *citizen of thf 
 United States ; nor is there an expression in it which can be 
 tortured into an intimation of the country or community to 
 which he belonged ; he had no doubt heard how extremely 
 jealous our courts were of foreigners assuming the name of 
 American; he also knew, probably by woful experience, 
 
 266 
 
 ALBANY. 
 
 Vanilenheov^l 
 
 v. 
 
 United Insur. 
 Company. 
 
 * 267 
 
 * 268
 
 268 CASES IN ERROR IN THE 
 
 ALBANY, that many of the West-India judges, those oracles of iflo* 
 
 '7 W dern law, were also of opinon that a Dutch man had no right 
 Vandenheuvel 
 
 v. to expatriate, even for the purposes of commerce ; it may 
 
 Company.' likewise have co me to his ears, although he must have been 
 endued with more than common intellect to comprehend 
 its meaning, that a foreign sentence, silent as the tomb, 
 would proclaim in loud, unequivocal and conclusive terms, 
 that he was no American. "With all this information, well 
 calculated to inspire apprehension and caution, he makes 
 the present insur ance. For a moment, he is tempted Jo 
 save a part of the premium, and warrant his property neu- 
 tral: He has resided in New-York more than five years ; 
 his certificate of naturalization bears testimony of his citi- 
 zenship ; the prop erty he knows to be his own, and he is 
 on the point of callin g it American in the policy. This was 
 true, and would have reduced the premium considerably : 
 But, on furt her deliberation, he resolves to forego every 
 benefit which his naturalization and neutral character gave 
 him, and to pay a war premium without the embarrassment 
 of a warranty. The policy is framed accordingly ; not a 
 letter in it purports a warranty of any kind. Was the in- 
 strument then to be our guide, as it ought to be, we should 
 arrive at a correct decision without difficulty, and without 
 opposition from a sentence more impregnable, if possible* 
 than the invincible fortress whence it issued. 
 
 #The policy being for the benefit of every one to whom 
 the property may appertain, would cover not only his own 
 goods, but even those of a belligerent merchant : " These 
 words," says the learned Emcrigon, " comprehend French- 
 men y as well as neutrals. The expression is genera^ and 
 such should be its interpretation, especially in the present 
 state of affairs, (France being then at war,) when it is clear 
 that if the insurance had been intended for a neutral, it 
 would have been so declared in express terms; the assurers, 
 therefore, he continues, have no pretext for saying they 
 were deceived." Vol. Ord. Mar. v. 2. p. 120. The un- 
 derwriters, in the case Emerigon is speaking of, complain- 
 ed that they had not been apprized of the property belong-
 
 STATE OF NEW-YORK. 
 
 269 
 
 ing in part to Frenchmen. This author, not less celebrated 
 for a pure and unblemished life, than for his professional 
 labours and skill, evidently supposes no property in time of 
 war should be deemed neutral unless expressly so stated in 
 the policy. Some judges in this country have intimated an 
 opinion, that all property in time of war must be taken as 
 belonging to neutrals, unless otherwise called in the policy* 
 Should this case come to the hands of any gentlemen who 
 have fallen into this error, the mischiefs of which to our 
 merchants surpass calculation, I beg them to peruse the 
 author just cited. If his arguments, in which the vigour of 
 a great mind, and the perspicuity of a man who fully un- 
 derstands himself, ever appear, are not followed by convic- 
 tion, nothing I can say will be attended to. Mr. Vanden- 
 heuvel, neutral as he was, did not think it safe to pursue 
 the advice of this great man, and describe himself and pro- 
 perty as such. Whatever rights neutrals have had and 
 maintained, Mr. Vandenheuvel *knew, that at this day, 
 every such pretension is abandoned, and that citizens of 
 this description are given up by the courts of their own na- 
 tion to be buffeted and plundered by the worse than inquisi- 
 torial tribunals of the powers at war. In the same case it 
 is mentioned that underwriters are bound to pay for an un- 
 just capture ; this is common sense, and therefore we must 
 not be surprised to find that it was law in the days of Eme- 
 rigon. But the plaintiff recollected, that in the present day 
 a rage for improvement pervades every rank in society . 
 that not only philosophers, but ministers of justice, were 
 infected with the pernicious mania; that judges in England, 
 with not more learning or industry than their predecessors > 
 were innovating on their venerable institutions. He fear- 
 ed, perhaps, that the same spirit of refinement might ex- 
 tend to this side of the Atlantic; to be, safe, therefore, in 
 ever)' possible event, he effects an open policy, unfettered 
 with any warranty, stipulation or condition whatever. But 
 even the caution and sagacity of a Dutchman cannot secure 
 him : He unfortunately writes a letter, and although this 
 
 ALBANY. 
 
 Vandenheuvel 
 
 v. 
 
 United Insur, 
 Company. 
 
 * 270
 
 ALBANY, forms no part of the contract, it is now produced in judg- 
 *^~^**s ment against him ; this weapon shall also be wrested from 
 U C y. Cl the hand of his adversary, and employed in his defence. 
 If the policy contains not internal and satisfactory evidence, 
 - that no neutrality was to be warranted, such intention re- 
 sults most irresistibly from this very letter, or order for 
 insurance : This we say, 
 
 2. Amounted only to a representation that the pro- 
 perty belonged to Mr. Vandenheuvel, not that it was Ameri- 
 can. 
 
 1. From the express terms of the order. 
 
 2. From the course of the transaction, 
 
 *The distinction here relied on between calling the pro- 
 perty his own, and calling it American, is important, in 
 case this abominably wicked Gibraltar sentence is to be en- 
 forced against him. He will therefore be permitted to 
 show not only that a distinction exists, 'but was intended 
 and understood. 
 
 The representation is that the premises insured were the 
 property of John C. Vandenheuvel. This, say the under- 
 writers, and the supreme court, is equivalent to calling the 
 property American. Whence is this inference drawn ? Not 
 from the name ; this is most unequivocally Dutch ; not from 
 the place of his nativity ; this it is admitted was in the Uni- 
 ted Netherlands ; nor from his looks, every underwriter at 
 first sight would pronounce him a foreigner ; nor from his 
 speech, for although he speaks English very well, the ac- 
 cent of his mother country is perceptible in every sentence ; 
 nor could it be presumed from his residence in New-Tork ; 
 this the supreme court have said, in the case of Campagne 
 v. Deyne, is not worth a rush. Still less was it to be collected 
 from his naturalization j this Judge Kellsallhas pronounced, 
 in the case of poor Duguet, (and his sentence has also been 
 affirmed,) a sin against his natural allegiance, and a viola- 
 tion of the rights of the belligerent parties. The truth is, 
 Mr. Vandenheuvel did not choose to say whether he was a 
 subject of the emperor of Morocco, a citizen of the Batawan
 
 STATE OF NEW-YORK. 371 
 
 republic, or a sachem of the Tuscarora tribe of Indians. This ALBANY. 
 they they were to guess at 'as well as they could. He knew ^JJ^J^, 
 that foreign admiralties were in the habit of metamorphos- 
 
 Umted Insur. 
 
 ing the national character of a merchant ad libitum ; but he Company. 
 had never heard of their undertaking to change the name 
 of an owner. He was not afraid, therefore, of their *saying * 272 
 
 that the property did not belong to him. To this he knew 
 the papers and testimony would give the lie direct. He 
 only apprehended their calling him. a Spaniard, a Dutchman, 
 or a Turk, as the interest of the moment might dictate. 
 He therefore contented himself with saying that the cargo 
 belonged to himself. The light in which he might be re- 
 ceived abroad, was left at the risk of the underwriters. It 
 requires uncommon ingenuity, according to our doctrine, 
 (for in respect to naturalized or resident citizens, the En- 
 glish courts are infinitely more liberal than the supreme 
 court,) to ascertain Mr. Vandenheuvel } s national character. 
 His ancestors must have been subjects to Philip king of 
 Spain. Those who maintain the divine and hereditary 
 right of kings, and the perpetual and indefeasible obligation 
 of natural allegiance, may style his ancestors rebels, and 
 himself a Spaniard; others may call him a Dutchman, be- 
 cause he was born a subject of the prince of Orange, or as 
 the stadtholder has expatriated, (which by the by, he had 
 no right to do, according to the modern law of nations,) they 
 may think him a citizen of the Bataoian republic. Others, 
 again, considering his oath of allegiance to this country, his 
 residence and naturalization, may be disposed to think, in 
 opposition to the supreme court, that he is really and truly 
 a citizen of the United States. This, it must be confessed, 
 is a knotty point, and must be left exclusively to the decision 
 of an admiralty judge. But with such various pretensions 
 why should the underwriters take him for an American ? 
 They had no more right, from what passed, to consider 
 him a citizen of this country, than Judge Morrison had to 
 pronounce him a Spaniard. 
 
 *3. From the nature of the transaction. * 273
 
 273 CASES IN ERROR IN THE 
 
 ALBANY. During a war, underwriters ever distinguish between 
 x- ^ v ^ s ^ / enemy and neutral property : For the former they have a 
 
 Vandenheuvel ... ,. . ,, . , T , 
 
 v. higher premium, and the policy is against all risks. In the 
 
 Company" latter case, as the premium is much lower, they take care 
 
 to have the neutrality of the property stated in the policy. 
 
 When this is omitted, the presumption is fair, that they 
 regard the property as enemy, and receive a premium ac- 
 cordingly. Not an instance has occurred this war, wherein 
 an underwriter meant to insure neutral property, as suck t 
 without its being expressly so declared in the policy. If, 
 in this instance, the contract had been intended to be of 
 that kind, most certainly they would have taken care the 
 policy should speak for itself. They would not have trust- 
 ed to a slip of paper, which, by the negligence of a broker, 
 or other casualty, might be lost or destroyed. 
 
 Again, great injustice will be done to Mr. Vandenheuvel 
 by the construction attempted to be put on this contract. It 
 is become a general practice with merchants, who warrant 
 their property neutral, to provide, by a proper clause, that 
 a foreign sentence shall not preclude other proof. This 
 would have been done here, if either party had supposed 
 the goods American. From this benefit, the plaintiff will 
 be precluded, and that by the negligence of the defendants, 
 who should have insisted on this stipulation, if they intend- 
 ed, at a future clay, to avail themselves of it. Their not 
 making this a part of the contract is a clear proof that they 
 did not underwrite the property as neutral, and received a 
 premium accordingly. 
 
 If our interpretation of the order, which leaves no room 
 for construction, be just, it follows, 
 
 * 274 *4. That the sentence of condemnation is not at variance 
 
 with the representation. 
 
 " The property is condemned as belonging to Spain, or 
 to persons being subjects of the king of Spain, or inhabiting 
 within the territories of the king of Spain,) enemies to the 
 king of Great Britain."
 
 STATE OF NEW-YORK* 2f4 
 
 Mr. Vandenheuvel has not said he was not a subject of the ALBANV. 
 king of Spain ; a person may, by swearing allegiance to dif- Vandeiiheuvel 
 ferent sovereigns, become the subject of several countries. UllU J'[ nsur . 
 We have many British subjects among us who are Ameri- _ 
 can citizens, but who would be treated as traitors by the 
 mother country, if taken in arms against it. So that, for 
 aught that appears, the plaintiff may have sworn allegiance 
 to the king of Spain, and yet the property may fall within 
 the letter of his representation, which only declares it to be 
 his own. It is admitted he was born in Holland, and the 
 British courts of admiralty, if they govern themselves by 
 the decisions of our supreme court, would have confiscated 
 it, although he had produced his letter of naturalization. 
 It was, no doubt, to guard against this very event, that he 
 cautiously avoided declaring to what country he belonged. 
 He knew he was an American citizen, but he could not tell 
 that foreign courts would consider him as such. 
 
 The cargo was too valuable, not to have brought his case 
 within some of the new-fangled principles, which have 
 lately been adopted to reach neutral property. He knew, 
 also, that by the law ef nations, and by that of England, he 
 was entitled, for every purpose of trade, to be regarded as 
 an American; but he as well knew, that boards of admiralty 
 respected *no law. He was determined, therefore, not to 
 expose himself to any embarrassment that might arise from 
 the iniquity of their proceedings, or to put it in the power 
 of the underwriters to avail themselves of any sentence they 
 might pronounce. He could not, however, foresee the 
 length which the supreme court would go in giving effect to 
 such sentence. He little imagined, that presumption on 
 presumption would be raised to defeat his recovery. 
 
 1st. It is presumed that he is an American citizen. This 
 fs in direct contradiction to the decision in the case of Du- 
 guet. Then it is presumed he meant to warrant the pro- 
 perty American, although nothing of the kind appears in the 
 policy. Next it is presumed he meant to represent it as 
 such, although the order for insurance conveys a meaning
 
 375 CASES IN ERROR IN THE 
 
 ALBANY, totally different. Then it is presumed, the property was not 
 ^^^^"^ American; because the judge, appointed specially for the 
 
 Vandenheuvel ., -.1 
 
 purpose of condemning neutral property, has said it be- 
 longed to Spanish subjects. Lastly, it is presumed not to 
 " belong to Mr. Vandenheuvel, although his name does not 
 appear in the decree. There must be some uncommon 
 sanctity in these decrees, where so much pains, and such 
 forced constructions, are resorted to for their support. 
 
 But if all these presumptions must be made in a case 
 where every honest feeling must take part with the assured, 
 we say ; 
 
 5. That the jury having, by their verdict, verified the 
 truth of his represexitation, the sentence cannot be received 
 as evidence to the contrary. 
 
 That a sentence abroad, ought, in no instance, to con- 
 * 276 elude the assured, was shown in the case of Goix *v. Low, 
 
 which is now before this court. Referring to that argu- 
 ment, we shall only insist, that there is a real and acknow- 
 ledged distinction between a representation and a warranty j 
 and that among all the unintelligible and contradictory Bri- 
 tish cases, not a single decision is to be found, in which, this 
 outrageous principle has been applied to the case of a repre- 
 sentation. 
 
 If such sentences are conclusive against one representa- 
 tion, why not against another ? In that case where are we 
 to stop ? Representations are infinitely more diversified than 
 warranties. One man in his instructions to insure, calls 
 his vessel a ship ; she is condemned, because she is a brig; 
 Another says, the crew are all New-Torkers; she is sen- 
 tenced, because one of them -was born in Boston. A third 
 says his vessel is an unarmed merchantman ; she, too, falls 
 a prey ; and without a particle of proof, it is stated by his 
 honour, that she was armed with thirty-six guns, all twenty- 
 four pounders. This, too, must be conclusive ; for, al- 
 though the vessel insured should appear to be an Albany 
 sloop of only fifty tons, our courts would be compelled to 
 believe, that by some miracle, she had strength enough to
 
 STATE OF NEW-YORK. 
 
 are 
 
 tatty guns of that caliber, and would think it very disre- 
 spectful in the owner, to hint at the impossibility of the 
 thing. 
 
 A merchant will so6n find it difficult to write an order for 
 insurance ; he will hardly dare to open his lips. If he tells ' 
 the truth, and has a hundred witnesses to attest to it, it may, 
 by and by, be contradicted by a judge, of whose exist- 
 ence he had never heard, or who may be one of the herd 
 that infest *the West-India islands. He will be compelled 
 to be silent, or the most he will dare to say to the broker 
 will be, " tell the assurers the name of the vessel, and the 
 voyage ; pay whatever premium they ask; answer no ques- 
 tions ; say not that the vessel is painted white or black ; 
 that she has two or three masts ; that she is armed or un- 
 armed. If they suspect the property belongs to the French 
 consul or the Grand Seignior, and therefore demand a 
 higher premium, do not undeceive them; pay at once 
 the additional sum they ask. I know I am a native Ameri- 
 <-an t and that the property is mine ; but rather than give a 
 hint of the kind, which will be twisted into a warranty or 
 representation, I will submit to pay five or six thousand 
 dollars more, and have no trouble about it." 
 
 Thus will every American be driven to carry on trade as 
 a belligerent subject, to avoid becoming a victim of the 
 fascinating doctrine, that admiralty judges can do no 
 wrong ; and that their righteous decrees are to bind all 
 mankind, from the rising of the sun to where he goeth 
 down. The decisions of Sancho, while governor of Bara- 
 traria, notwithstanding the sagacity which the squire 
 discovered, and the high reputation in which they have hi- 
 therto been held, must now, like every thing human, pass 
 away. His judgments were the result of common sense 
 and common honesty, (for luckily-for his subjects, he knew 
 nothing of the law of nations,) but they bound only the in- 
 habitants of a small island ; the West-India sentences on 
 the contrary, pervade the globe, and proceed on the eter- 
 nal and immutable laws of God and of nature, which no 
 
 ALBANY. 
 
 Vandenheuvel 
 v. 
 
 United Insur. 
 Company. 
 
 * 277
 
 278* 
 
 ALBANY. 
 
 Vandenheuve! 
 
 v. 
 
 United Insur. 
 Company. 
 
 * 279 
 
 CASES IN ERROR IN THE 
 
 earthly consideration *would have tempted Judge Morrison 
 to violate. What a pity it is, that his honour did not disclose 
 to us the grouds of condemnation. The truth is, there 
 was found on board a letter in cypher, from the French 
 consul at New-Tork : It was this innocent epistle which 
 occasioned the forfeiture of a most valuable property: 
 And yet this decree, this offspring of darkness and oppres- 
 sion, this outrage on neutral rights, this satire on justice, 
 must be received as conclusive evidence that the property 
 belonged to the king of Spain t who, it seems, has lately 
 become a merchant, although the very judge who pronoun- 
 ced it, must have been satisfied, from the documents before 
 him, that the ship and cargo actually and entirely belonged 
 to the plaintiff. 
 
 There being neither a warranty, nor representation, as to 
 the property's neutrality in this case, it must be superflu- 
 ous minutely to examine how a foreign sentence should be 
 treated in this country. I shall therefore only subjoin a 
 summary of the reasons why, even in case of express 
 warranty, a sentence should be conclusive of nothing, ex- 
 cept that the property was actually condemned, and that, 
 therefore, the assured was entitled to recover. 
 
 1. It is contrary to the written contract, and the true 
 understanding of the parties. The high premium paid by 
 neutrals during a war, is to be protected against unjust 
 judgments. It is not within human ingenuity to assign 
 
 another plausible reason, why neutral property should, in a 
 war between other powers, be burthened with so great an 
 addition of premium. Is it not then absurd and unjust to 
 say, that by such a sentence, the risk, which "Was so much 
 apprehended, *and the principal one intended to be guard- 
 ed against, shall bar a recovery? Not all the art of 
 man, or powers of the human mind, can reconcile this 
 plain, obvious and true construction of the instrument, 
 with the doctrine of a foreign sentence being conclusive. 
 
 2. It is a capture at sea which gives to the assured a 
 right to abandon. This being made, fixes the condition of
 
 STATE OF NEW- YORK. 279 
 
 the parties. A subsequent judgment cannot alter or vary ALBANY. 
 their rights. " If an abandonment be made, the assurers? ^^^^ 
 says Emerigon, "are alone interested in the sentence which Uuite( ] r - In3Ur 
 may be pronounced ; and if the ship be declared good Company. 
 prize, contrary to the law of nations, or the laws of war, 
 the underwriters must suffer by it. If the property be re- 
 leased, it belongs to them in virtue of the abandonment. 
 But what fixes,". says he, "the condition of the parties, 
 considered in itself, is not the judgment rendered by the tri- 
 bunal of a foreign and hostile monarch. It is the abandon* 
 went, made or not made ; it is the capture that confers the 
 right of abandoning." See Valin, v. 2. p. 122. 
 
 Here, in few words, without any affectation or display 
 of learning, we have a just and correct construction of an 
 important expression in the policy, a want of attention to 
 which has occasioned all the confusion and absurdity of 
 modern adjudications. It had not occurred to this profound 
 lawyer, how an unjust sentence, which must necessarily be 
 subsequent to a capture, could defeat the rights of the as- 
 sured, which that event, followed by a timely abandonment, 
 had rendered perfect and indefeasible ; nor could his pene- 
 trating mind discover, how any question, arising *on a poli- * 280 
 cy, could be influenced by proceedings which were carrying 
 on, in rem, at many thousand leagues distance, and in the 
 absence of all the parties : Still less could he perceive why 
 the tribunals of his own country should forbear to inquire 
 into the truth of a fact, which had probably never been agita- 
 ted abroad. But no study or reflection could have brought 
 him to comprehend why a court in France should not de- 
 cide according to facts admitted by both parties, (as is the 
 case here,) merely because a foreign tribunal had condemned 
 the property as prize : He therefore considered the vessel, 
 after capture and abandonment, lying entirely at the risk 
 of the underwriters, and that the consequences of a con- 
 demnation, just, or unjust, must be borne by them. This, 
 however, did not deprive the underwriters of any defence 
 arising out of the peculiar quality of the property, or thr
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Vandenheuvcl 
 v. . t 
 
 United Insur. 
 Companj'. 
 
 misconduct, or misrepresentation of the assurers. Such 
 questions frequently must have arisen : when they did, 
 they were decided according to evidence, as in other ca- 
 ses, by the French courts, who saw no reasons for trans- 
 ferring to a petty tribunal, in the east or west, matters 
 which they themselves were competent to determine, and 
 respecting which they possessed full and complete informa- 
 tion. Under this order of things, the assured contended 
 on equal ground with his adversary ; his witnesses were 
 heard, his papers examined, and his character and reputa- 
 tion were not totally lost sight of. Under the new state of 
 things, his' reputation, his witnesses, the fairness of his 
 conduct, and regularity of his papers, avail him nought : 
 In short, he has no more chance of succeeding against an 
 underwriter, who is protected by an unjust ^foreign sen- 
 tence, than the property itself, perhaps a valuable India- 
 man^ had of being released from the gripe of a corrupt and 
 rapacious admiralty judge. 
 
 3. If these sentences are received as conclusive, great in- 
 justice will most certainly, and invariably follow ; which 
 will be avoided, by permitting the assured to prove his 
 warranty. This argument should exclude the reception of 
 these sentences : by doing so, injustice may be done j in the 
 other \yay, an improper decision is impossible. 
 
 4. These courts being governed, not by the law of na- 
 tions, or of war, but by arbitrary mandates of their respect- 
 ive sovereigns, it is folly in the extreme, to pay any 
 deference to their decrees. 
 
 5. If they were truly governed by general, fixed and 
 known rules, their, modes of proceeding are too unfriendly 
 to truth, to receive their sentences as evidence of any fact 
 whatever. 
 
 6. It is extremely difficult, and so allowed to be on all 
 bands, even when the cause of condemnation appears, which 
 is not often, to discover by what rule the judge has come 
 to his conclusion ; it is, therefore, not just to say, it musi. 
 have been for this or the other reason.
 
 STATE OF NE W-YORK. 281 
 
 7. It is impolitic to give any credence whatever to these ALBANY, 
 decrees, except when it is attempted to disturb their direct Va ndenheuvei 
 
 effects. United Insur. 
 
 8. By admitting the assured to prove his warranty, these _ 
 sentences are neither opened or reviewed ; a contrary sup- 
 position has been the source of much error on this subject. 
 
 Upon the whole, a case more to be favoured, never pre- 
 sented itself to a court ; the plaintiff has *acted with good * 282 
 faith throughout j if he has really made any representation, 
 as to the neutrality of his property, which he denies, the 
 defendants admit he has said no more than what is true. 
 He sees no reason, therefore, why he should not entertain 
 sanguine hopes that this judgment will be reversed, and the 
 underwriters compelled to pay the whole amount of their 
 respective subscriptions. 
 
 BROCKHOLST LIVINGSTON, 
 of counsel for the plaintiff' in error. 
 
 The defendants in error insisted that the judgment ought 
 to be affirmed, because, 
 
 1. The description of the good American ship is equiva- 
 lent to a warranty of her as American property, by the 
 
 plaintiff in error. 
 
 2. Because every warranty in a policy is deemed to be a 
 condition that a certain thing shall be performed, and unless 
 it be performed the contract is void. It is perfectly imma- 
 terial with what view the warranty is inserted ; or whether 
 it is inserted with any view at all ; but being once inserted, 
 it becomes a binding condition on the assured ; and unless 
 he can show that he has literally fulfilled it, the contract is 
 the same as if it had never existed. 
 
 3. Because the sentence of the court of vice-admiralty, 
 condemning the ship and her cargo as Spanish property, 
 without assigning any reasons for the condemnation, is con- 
 clusive evidence that the ship was not American property. 
 Hence it follows, that the plaintiff in error has failed in per- 
 forming his warranty that the ship was American property,
 
 282 
 
 CASES IN ERROR IN THE 
 
 ALBANY, and, consequently, the plaintiff in error cannot be entitled to 
 Vandenbeuvei *recover a total loss ; but is only entitled to recover a return 
 United'hior. of Premium. 
 
 Company. ROBERT TROUP, 
 
 of counsel for the defendants* 
 
 * 283 
 
 * 284 
 
 On the cause being brought on, RADCLIFF and KENT, 
 justices, assigned the reasons of the court, as ante t from 
 page 243 to 267 inclusive. 
 
 C LINTON, Senator. The plaintiff having warranted a ship 
 and cargo as American property, the question is, whether, in 
 an action against the insurers, the sentence of a foreign 
 court of admiralty, that such warranty was false, is conclu- 
 sive evidence. It is admitted by the plaintiff, that the sen- 
 tence binds and changes the property, and that it is prima 
 facie evidence of the fact set up against him ; and, on the 
 other hand, it is conceded by the defendants, that in several 
 cases, in an action of this kind, the judgment is not defini- 
 tive in favour of the insurers ; such as when, on the face of 
 it, it is founded on local ordinances, or contrary to the law 
 of nations, or so ambiguous that the court cannot, from the 
 reasons assigned, collect the grounds of it ; and, that this 
 case not coming within either f these descriptions, the con- 
 test between the parties still remains open, whether the 
 foreign sentence be prima facie or conclusive evidence, 
 against the insured, and whether it bind the property adju- 
 dicated only, or is conclusive to every extent, and in every 
 modification of the subject. 
 
 Upon a question of such immense importance, either as 
 it respects the interests of commerce, the honour of the 
 nation, the rights of individuals, or the principles of justice, 
 great and mature deliberation is requisite and essential. 
 I know not any cause *that has ever been discussed in this 
 court, which embraces so many objects, to render the final 
 result important. Attempts have been made to establish 
 the doctrine of conclusiveness ; and, as far as I can com-
 
 STATE OF NEW-YORK. 284 
 
 prehend them, they may be arranged under four general ALBANY. 
 heads. s-^v^/ 
 
 1st. Authorities, previous to the 19th April, 1775. Vandenheuvel 
 
 2d. Analogical reasoning from domestic courts. 
 
 3d. The nature and meaning of the contract of insu- ' 
 
 ranee ; and, 
 
 4th. National considerations of courtesy, comity, and the 
 like. 
 
 The cases quoted, as existing anterior to the revolution, 
 are not only few, but are either ambiguous or not in point. 
 
 The most ancient one, reported in 2 Shower, of Hughes 
 v. Cornelius, was an action of trover, brought for a ship sold 
 under a decree of a French admiralty court. The court 
 admitted the sentence to be true, although contrary to the 
 special verdict. They went upon the ground of the decree's 
 changing the property, and of the inconveniences that would 
 result to merchants, if the court should unravel the title of 
 property acquired in this way j and the reason assigned by 
 Chief Justice M l Kean, in a case reported in Dallas, seems 
 to be conclusive. The idea that a sentence of a court of ad- 
 miralty is conclusive, arises from this consideration, that the 
 court always proceeds in rent. The decree naturally and 
 necessarily binds the subject of the proceeding. A ship or 
 cargo, or any person purchasing under the decree, will, of 
 course, be secure. 
 
 The next case relied upon, is a supposed one of *a # 285 
 
 Swedish ship. It was first mentioned by an anonymous 
 author, in a book entitled " Theory of Evidence" It does 
 not appear in any collection of reports ; and Butter, in refer- 
 ring to his authority for this, mentions in the margin, the 
 case in Shower* It therefore appears, that it is confounded 
 with the case of the Dutch ship in that author. 
 
 The case of Fernandez and Da Costa, was a Nisi Prius 
 one, and it expressly states, that the plaintiff only gave a 
 partial evidence of the vessel's being Portuguese; and all 
 we can collect from it, is, that the testimony adduced by 
 him was not sufficient to balance that derived from the fo-
 
 285 CASES IN ERROR IN THE 
 
 ALBANY, reign adjudication. Will it be believed, that upon this 
 v-^v^-, slender ground, the mighty fabric ot conclusiveness is at- 
 1 C \. tempted to be erected ? For, independent of decisions since 
 
 the revolution, which are no authority ; of arguments from 
 analogy, which I shall presently notice ; and of a few spat- 
 tered dicta in the books, which do not bear the stamp o* 
 judicial authority ; there is nothing whereby to warrant the 
 decision of the court below. 
 
 The arguments derived from the deference which is paid 
 by the courts of England to 'fcach other's proceedings do 
 not apply. They are parts of the same building held toge- 
 ther by one common arch. They are under the same go- 
 vernment, proceed according to the same law, and redress 
 can be obtained through higher tribunals. If they attempt 
 to exceed their jurisdiction, they can be restrained by a su- 
 perior power, which has an interest in preventing any un* 
 due encroachments, and repressing any improper devia- 
 tions. This is not the case with a foreign court of admi- 
 ralty. If a neutral conceives himself injured, and is indul- 
 ged with an appeal, he must still continue *in the courts of 
 the belligerent ; and there is not any uniform law by which 
 these courts govern themselves. They listen more to in- 
 structions from the sovereign, than to the injunctions of 
 the law of nations. Lord Mansfield admits, that, " in every 
 war, the belligerent powers make particular regulations for 
 themselves ; and that no nation is obliged to be bound by 
 them. (Park, 360.) It is conceded by the defendants that 
 a foreign sentence is not binding if resting, on the face of 
 it, on such regulations, and yet they declare, that if found- 
 ed on these, but it does not appear to be so founded, that 
 then it is conclusive. 
 
 With respect to the nature of the contract, upon which 
 much has been said, I confess I do not perceive the force of 
 the reasoning, which attempts to fix the loss on the insu* 
 
 red. 
 
 The contract of insurance, says Park, being for the be- 
 nefit of the insured, and the advancement of trade, must
 
 STATE OF NEW- YORK. 
 
 285 
 
 bs construed liberally for the attainment of those ends. 
 We must, therefore, not give it an exposition that would 
 tend to embarrass commerce, or injure the assured ; but 
 adopt such a construction as will most promote the impor- 
 tant objects in view. How commerce would be affected, 
 shall hereafter be considered. By the terms of the con- 
 tract, the assured warrants the property to be neutral, and 
 it is understood to be incumbent on him, so to conduct the 
 vessel, as not to forfeit her neutrality. If the vessel be 
 neutral, in fact, he fulfils his warranty. He does not war- 
 rant that she shall be so in the conception of foreign courts. 
 It is not in the reach of human sagacity, to scan the views 
 which different men may take cf the same subject, or the 
 various motives which may produce clashing decisions. 
 ^Against corruption or ignorance in judges, perjury in 
 witnesses, and fraud in captoi*s, it is out of the power of 
 the assured to guard ; they are risks which he casts upon 
 the assurer, and which the assurer undertakes, in consider- 
 ation of an adequate premium. All the assured is requ5 
 red to do, is not to falsify his warranty. In this case, he 
 paid a war premium of 15 per cent, and, the foreign sen* 
 tence out of view, the special verdict has verified his war- 
 ranty. 
 
 With regard to the comity due from one national tribu- 
 nal to another, it appears to me that the compliment is car- 
 ried sufficiently far, by considering the sentence as prvna 
 facie evidence. We are not bound to sacrifice the substan- 
 tial interests of our citizens to etiquette or courtesy. If a 
 foreign nation will countenance unjust spoliations, if a fo- 
 reign judge will divide the spoil with the plunderer, are we 
 to countenance the knave and the robber, and declare, with 
 all possible politeness, although we are convinced that an in- 
 quiry would paint you in these colours, yet, our respect for 
 your authority will prevail over a regard for justice, or the 
 claims of our citizens ; we shall silence all discussion ; and, 
 although we know you to be both ignorant and corrupt, 
 both oppressive and fraudulent, yet, as you wear the form, 
 
 3 H 
 
 ALBANY. 
 
 Vandenhcuvel 
 
 v. 
 
 United Insur. 
 Company.
 
 '287 
 
 CASES IN ERROR IN THE 
 
 United Insur. 
 Company. 
 
 # 288 
 
 ALBANY. without attending to the obligations, of a court of justice, 
 
 we shall treat your decisions with all imaginable courtesy, 
 Vandenheuvel * 
 
 comity, deference, politeness, and respect. 
 
 This is a summary of the doctrine, stripped of the im- 
 posing garb which it has assumed ; and it can only be a ques- 
 tion, whether it is most deserving of ridicule or detesta- 
 tion. 
 
 #In suits, brought in England, upon foreign judgments, 
 between the same parties, the courts consider them only as 
 prima fade evidence of the demand, and admit the de- 
 fendant on a plea of nil debet, to contest the merits of the 
 original cause or action. If a foreign judgment be not 
 considered conclusive between the same parties, in cases of 
 this nature, why of a foreign court of admiralty between 
 third persons ? The constitution of the United States pro- 
 vides, that " full faith and credit shall be given in each 
 state, to the public acts, records, and judicial proceedings 
 of every other state." And the congress may, by general 
 laws, prescribe the manner in which such acts, records, 
 and proceedings, shall be proved, and the effect thereof. Is 
 it conceivable, that if the sentence of courts of disconnected 
 nations are to be held in such high veneration, by each 
 other, that the framers of the constitution could have 
 thought it necessary to make this provision for sister 
 states, in the closest bond of political connexion. The Bri- 
 tish have made the interests of commerce a primary ob- 
 ject of their cares. In the discovery and arrangement of 
 wise plans, and the execution of efficacious measures, for 
 the attainment of this important end, they stand unrivalled 
 in the history of mankind. Their fleets now traverse every 
 clime, and visit every sea, laden with the riches of the world ; 
 they bear in their hands the trident of the ocean. In the 
 time of war, they enrich themselves with the plunder of neu- 
 trals ; their courts appear every where, and condemnations 
 arc conducted, not according to the law of nations, or the 
 rights of parties, but according to the instructions from the 
 Og9 sovereign #and the rapacity of the captors. " Much less,"
 
 STATE OF NEW-YORK. 
 
 says tVooddeson, " ought any of our courts to slight a foreign ALBANY. 
 sentence. Unless we give'credit to their proceedings, we can- ^'"v"'^- 7 
 
 f Vandenheim-l 
 
 not expect the judgments here should be thought to merit v. 
 
 United Insur. 
 
 from them any reverence or attention. Here, then, is an Company. 
 
 explicit avowal that the doctrine is adopted with a view to 
 
 a return. But France, having a different policy, has 
 
 adopted a different system.t It is to be further considered, , t Emerigon t 
 
 1 J "457. M4. and 
 
 that Grcat^Britain is more than one half her time at war; admitted in the 
 
 . ... argument of 
 
 that she is an underwriting nation, and, therefore, highly Judge itadriijf. 
 interested in maintaining the rule laid down. Our policy is 
 entirely different. Peace is no less our interest than our 
 duty. Our courts are not liable to executive instructions, 
 and, consequently, must go by the principles of justice ; not 
 according to the exigencies of the state. In establishing, 
 therefore, a rule for our government, on this momentous 
 subject, argumenta ab mconvenienti ought to have great 
 weight. France and England have set us the example ; 
 and, as the law of nations is, at least, doubtful, we are at 
 liberty to adopt such a construction as shall most subserve 
 the solid interests of this growing country. We ought, 
 also, to consider, that the object of insurance is indemnity ; 
 that instead of fixing the loss upon one, it divides it among 
 many ; that with a pacific nation like ours, an exposition 
 that will release the insurer from war risks, will be a depri- 
 vation of all the benefits that can arise from a neutral posi- 
 tion, and will expose us to most of the calamities, without 
 any of the advantages, derivable from a belligerent state. 
 
 Even Great Britain, situated as she is, has found incon- 
 venience, in many respects, from the generality *of the rule 290 
 she has adopted. Her courts have, by recent decisions, 
 attempted, to narrow it into a smaller compass. Several 
 important exceptions have been sanctioned, and v/henever a 
 different course of policy shall be deemed advisable, the 
 whole system will be destroyed. Our court has, unadvi- 
 sedly, and, in the first instance, without hearing argument, 
 taken that direction, and with the best intentions, has per- 
 severed in a doctrine, which would inevitably lead to the
 
 290 CASES IN ERROR IN THE 
 
 ALBANY. spoliation of our citizens, and the destruction of our com- 
 merce. 
 
 Vandenheuvel .... . r , , 
 
 There is nothing, either m the constitution ot the admi- 
 United Insur. ,- T-. . , i r j- 
 
 Company. ralty courts of European nations, or the mode ot proceeding 
 
 in them, which entitle them to respect. They adopt the 
 
 rules of the civil law. The judges hold their offices during 
 pleasure, and follow the instructions of the ministry. The 
 captors, who are interested, are admitted as witnesses, and 
 the judges are paid in proportion to the condemnations. 
 They are generally composed of needy adventurers ; their 
 great aim is plunder, and their primary incentive, avarice. 
 
 I have thus, in a cursory manner, glanced at the principal 
 grounds of reasoning in the cause, and I must own^ that I 
 feel most deeply impressed with its importance. The 
 effects of the decisions of this day will be felt when we are 
 no more ; and I trust that it will receive the approving 
 voice of our consciences, and of our country. 
 
 GOLD, Senator. The questions that arise in this cause 
 for the consideration of the court, are : 
 
 1st. Does the warranty in the terms of the good American 
 skip) the Astrea, import, in judgment of law, American, or 
 neutral property f 
 
 * 291 *2d. Is the sentence of the vice-admiralty of Gibraltar 
 
 conclusive, and does it repel the verif cation of warranty 
 here f 
 
 On the first preliminary question, however loose and in- 
 definite men are in conversation upon subjects of this nature, 
 yet, when the occasion is considered, the bearing of the 
 property of the ship on the professed object of the contract ; 
 its materiality to the risk, and consequent propriety of an 
 understanding on the point ; the court must, 1 apprehend, 
 consider Mr. Vandenheuvel as explaining himself on the 
 question of property, and under the terms American ship^ 
 warranting it neutral. 
 
 Such, in my apprehension, is the plain, fair and rational 
 import of the language used by the assured on this occa- 
 sion.
 
 STATE OF NEW-YORK. 291 
 
 On the second question in the cause, involving the legal ALBANY. 
 effect of the sentences of foreign admiralties, I enter with Vandcnheuvei 
 much diffidence, and all the solicitude which its extensive ^j- ^^ 
 operation upon the fortunes of our fellow-citizens, and the Company. 
 jurisprudence of our country, inspires. If our law is set- 
 tled on this point ; if the question is bound by authority, 
 then law must have its course, however unpleasant the con- 
 sequences, however opposed to the speculations of the most 
 enlightened statesmen. 
 
 For authority on the question, adjudged cases in that 
 country from whence our jurisprudence is derived antece- 
 dently to our revolution, must be resorted to. 
 
 The necessary effect of the sentences of foreign admiral- 
 ties in rem, in changing the property in the subject matter 
 in case of condemnation, is readily *evinced both in point 
 of reason and authority. To this the case of Hughes v. 
 Cornelius, 2 Shower, 232. strengthened by some other cases, 
 bears strong testimony ; in this the jurisdiction of all admi- 
 ralties, and the peace of all civilized nations, are essentially 
 concerned. 
 
 But the reason for extending those sentences beyond the 
 attainments of the above objects, to control the stipulations 
 of parties in a policy of insurance are not equally cogent; 
 the necessity not equally apparent. 
 
 For authority to support this application of admiralty 
 sentences is cited, Bullets N. P. 244. Theory of Evidence, 
 37. and the case of Fernandez v. Da Costa, Park, 177. In 
 the two first books, the rule to the above extent is laid down 
 in nearly the same words, in plain and unequivocal terms ; 
 but no case is cited in the Theory of Evidence, in support of 
 the doctrine, and in Butter, the case relied on is that of 
 Hughes v. Cornelius ; which, although containing observa- 
 tions of the court of a very general and unqualified nature, 
 yet, in the point adjudged, does not warrant the .rule as 
 there laid down. 
 
 The case of Fernandez v. Da Costa is apposite to the 
 question before the court, and merits all that respect which
 
 292 
 
 CASES IN ERROR IN THE 
 
 ALBANY. is due to a Nisi Prius decision of one of the greatest judges 
 N -"~ v ~ >> -' that ever sat in Westminster Hall. The name of Judge 
 
 Vandenheuvel .,' IT t 
 
 v. Buller must be considered also as adding some authority to 
 
 Company, ' the rule by him laid down, though supported by no adjudged 
 *- " case there cited. 
 
 No adjudications at bar, no elaborate discussions appear 
 to have taken place on the question. On this foundation, in 
 * 293 point of authority, stands the doctrine ^contended for by 
 
 the defendants in error ; and we are now called upon to 
 say, whether the question is so bound down by authority as 
 to be deemed at rest, and to repel a consideration of its 
 merits. 
 
 After much reflection on the point, in every view I have 
 been able to place it, I am not satisfied that the law on the 
 subject was settled at the period of our revolution. In 
 pursuing the history of law principles, in retracing adjudi- 
 cations, and collecting cases upon questions long agitated in 
 courts, we find early cases often overruled ; first opinions 
 disregarded and reversed, and important questions finally 
 settled in opposition to greater authority of precedent than 
 what is to be found on the question before the court. 
 
 Such is the result presented by a perusal of English 
 reporters. 
 
 But general principles are resorted to in support of the 
 definitive effect of admiralty sentences, and domestic judg- 
 ments are adduced for illustration. 
 
 In the principles of sovereignty, in the superior integrity 
 and responsibility of domestic judges, their exemption from 
 the influence of policy, from the dominion of passions hos- 
 tile to the administration of justice, too often excited in 
 belligerent nations, in the prevalence of the salutary maxim 
 of municipal origin, " ut sit finis UtiunP will be found rea- 
 sons, I apprehend, for superior confidence in domestic tri- 
 bunals. 
 
 The case of Walker v. Witter, Doug. 5. is strong to show 
 the difference between domestic and foreign judgments ; 
 the incontrollable verity predicated of the former, is with- 
 
 2
 
 STATE OF NEW- YORK. 
 
 293 
 
 held from the latter, which are there holden to be cxamina- 
 ble. Nor is the effect *of this authority repelled by the 
 argument, that a court resorted to, to carry into effect a 
 foreign judgment, ought to be satisfied of its justice ; the 
 application is for justice and not favour, and the court thus 
 resorted to is bound by constitutional principles, not to 
 delay that justice ; besides, the same principle will apply to 
 the case before the court. 
 
 The case of Gage v. Bulkely, in Ridgervety, and Burrows 
 v. Jemima y in Strange, are not considered as bearing on the 
 question ; they resting on a different principle, that of the 
 " lex loci contractus." The qualified manner in which 
 admiralty sentences are now received in England ; their 
 different operation as to the fact and the law, serve to mark 
 a wide distinction between those sentences, and domestic 
 judgments. 
 
 If the reasons assigned for an admiralty decision, do not, 
 when tested by the law of nations, bear out the conclusion, 
 the sentence is rejected ; if the reasons are assigned in an. 
 obscure and unintelligible manner as to the point decided, the 
 result is the same ; but if the judge should have no reasons, 
 or, by casualty, omit to put them on the record, then the 
 sentence becomes conclusive, and repels all examination. 
 
 Why a sentence founded on error, as to facts, should be 
 more conclusive than one founded on error in law, is diffi- 
 cult to conceive. That the mode of admiralty trial is more 
 favourable to the investigation of truth than that provided 
 by our common law, is not, I apprehend, evinced by expe- 
 rience, nor do the opinions of some very eminent writers 
 warrant any such conclusion. 
 
 *To sentences standing on such grounds, my mind is not 
 yet reconciled to yield that controlling effect, now contended 
 for. Nothing short of the law being made out in the clear- 
 est and most satisfactory manner, can, in my apprehension, 
 justify the reception of those sentences, upon the broad 
 ground now urged upon the court. 
 
 ALBANY. 
 
 Yaiulenheuvc) 
 v. 
 
 United Iiisur. 
 
 Company. 
 
 * 294 
 
 29J
 
 295 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Vandenheuvcl 
 
 v. 
 
 United Insur. 
 Company. 
 
 * 296 
 
 There is another ground, remaining to be considered, on 
 which it is with some difficulty I have been able to form an 
 opinion. 
 
 The position of the insurer is, that the assured, on enter- 
 ing into the policy, well knows the tribunal of the captors to 
 be the prize-forum ; that a consideration of neutrality is 
 essential to the determination ; and, therefore, by the terms 
 of his contract, assents to this test of his warranty. If the 
 law, giving a conclusive effect to admiralty sentences, is to 
 be deemed settled, then would the above conclusion cor- 
 rectly follow; then would the assured be presumed to 
 know that law, and to assent by his contract to all its con- 
 sequences : but, upon any other ground, he may with equal 
 reason be presumed to assent to a limited operation of these 
 sentences as prima facie, or presumptive evidence, reserving 
 to himself a right, and taking upon himself the burthen of 
 disproving the same, and verifying his warranty. Such 
 must be the conclusion of the assured in France. 
 
 A mind conscious of the truth of the representation in 
 the policy, would with difficulty be carried to the conclu- 
 sion, that although the property insured be, in fact, neutral, 
 yet if condemned it must from thence be deemed enemy's. 
 Where the property, in fact, is neutral, and in such case 
 only, will the above opinion *operate ; it is not to be pre- 
 sumed, that the assured calculates on the event of a con- 
 demnation. In the various cases of loss by any of the 
 perils insured against, the falsification of the warranty is 
 equally 'fatal to a recovery by the assured, though no foreign 
 admiralty may have passed upon the question. 
 
 Such are the grounds on which my opinion on this im- 
 portant question is formed. I will only add, that it is with 
 no small diffidence, I submit an opinion for the reversal of 
 the judgment of a court, possessing, in so eminent degree, 
 the high respect and confidence of the community. 
 
 Judgment of reversal.
 
 STATE OF NEW-YORK. 296 
 
 Charles Newkerk, and Geertruyd his wife, Execu- ALHAXY. 
 
 trix of Peter Schuyler, deceased, Appellants, Xcwkci . k 
 
 against Edward S. \Villett, Respondent. -\vmett. 
 
 ON the 18th dav of April, 1799, the appellants filed a A hill for a 
 
 discovery ami 
 
 bill in chancery, setting forth that the testator died in the injunction to 
 \vinter 1792, and left the appellant, Geertruyd Newkfrk,\i\a a t law, must 
 
 T-I r L i state some parti- 
 
 widow and executrix. 1 hat soon alter the respondent cu | ar mHU ur 
 demanded a considerable sum of money, which she refused jJj^^hS"; 
 to pay ; that the respondent thereupon offered to submit the [j-^J; . Se e f k a s 
 controversy to arbitrament, which she also refused ; that material to hi* 
 
 J cletence, and 
 
 thereupon the respondent, in April, 1793, and after the inter- without which 
 
 he cannot pro- 
 marriage of the appellant Geertruyd with the appellant ceed to trial. A 
 
 mere inquiry 
 
 Charles N&ukerk, commenced a suit against them, in the because the 
 supreme court, for 1,COO/. for moneys pretended to be due SSt^t Uw are 
 to him from said Schuyler ; that the appellants did not, of n^bHSliiitS- 
 their own knowledge, know any thing of the said demand ; jjj 1 ; j^ 1 ," 5 a fish " 
 but had strong grounds to believe the *same to be unjust, * 297 
 
 because the respondent had not, during the life of said 
 Schuyler, taken measures to adjust his claim, and because 
 he did not possess any vouchers to establish the justice of 
 his demand ; that the relations and accounts given by the 
 respondent were inconsistent and various, and that the 
 appellants being unacquainted with the origin of the pre- 
 tended debt, could not, without a discover}' by the respond- 
 ent of all the facts, safely proceed to a trial of the said 
 suit. And that the respondent might, until he should have 
 fully answered to the said facts and interrogatories, stated 
 in the said bill, be enjoined from proceeding to a trial at 
 law in the said suit, the appellants prayed an injunction, 
 which was issued of course, on the usual affidavit. 
 
 Fourteen da\ s previous to the filing the above bill, viz. 
 on the 4th day of April, 1 799, the said appellants had filed 
 a bill against the respondent, (in substance the same as the 
 second bill.) to which the respondent had put in his answci
 
 ALBANY. 
 
 Newkerk 
 
 v. 
 WUlett. 
 
 298 
 
 CASES IN ERROR IN THE 
 
 before the second bill was filed, by which answer the re- 
 spondent states, that in the year 1786 or 1787, he was pos- 
 sessed of certificates or public securities, amounting to 800/. 
 and upwards, besides interest, which he, at the solicita^ 
 tion of the said Schuyler, delivered to him, on his promise 
 to lay them out for the respondent's use in the purchase of 
 forfeited lands ; that he had several times applied to the 
 said Schuyler, in his life-time, but without success, to ren- 
 der an account and come to a settlement for said certificates, 
 and that on the last of those applications to the said Schuy* 
 ler, at Johnstown, he declared he had sent the said certifi- 
 cates to New-Tork with his wife, theiabove appellant, to be 
 disposed of, and that on her return he would pay the re- 
 spondent for the same. 
 
 * The bill first filed, to which the answer was put in OIL 
 the 14th day of December, 1799, was ordered by the Chan- 
 cellor to be dismissed. 
 
 On the 4th clay of January, 1800, the Chancellor, after 
 hearing the arguments of counsel for both parties, ordered 
 the injunction issued on the second bill to be dissolved. 
 
 On the above hearing, to dissolve the injunction, the 
 Chancellor admitted the first bill,. and the answer thereto, to 
 be read ; and also an agreement entered into in the suit, in 
 the supreme court by WUlett against the appellants, in 
 which they consented and agreed " that the rule of refer- 
 ence be discharged ; that the cause be tried by a struck ju- 
 ry ; that the affidavits of Tennis Van Wagenen, John Roor- 
 back and Gefrit Staats, jun. be admitted and read as evi- 
 dence ; that no writ of error shall be brought by the defend- 
 ants merely for the purpose of delay ; nor shall any bill in 
 chancery be brought or filed. 
 
 The case now came up on an appeal from the Chancellor's 
 order dissolving the injunction. 
 
 KENT, J. This is an appeal from an interlocutory order 
 of the court of chancery, dissolving an injunction, without 
 any answer being put in to the bill,
 
 STATE OF NEW.YORK. 298 
 
 The two most material points which were raised at the ALBANY, 
 argument, upon this appeal, were these: V< NTwkedt 
 
 1st. Is an order dissolving an injunction, one of the or- v - 
 
 ders of the court below, upon which an appeal will He? . 
 
 2d. Did the bill contain sufficient equity to entitle the ap- 
 pellants to a discovery, and, consequently, to an injunction 
 to stay proeeedings at law, in the mean time ? 
 
 *To discover the first question with accuracy and satis- * 299 
 
 faction ; to draw the line between that class of orders, ari- 
 sing in the progress of a cause, which are susceptible of 
 review by appeal, and that class of orders which are not 
 susceptible, (and such a distinction may, and does exist,) 
 would acquire more examination than I have had time to 
 bestow, or than the late period of the session of this court 
 would conveniently permit : I shall, therefore, give no opi- 
 nion on the first point ; nor is it necessary in the present 
 instance, to the rights of the parties, because, admitting 
 an appeal to lie upon the order, I am of opinion, on the 
 second question, that the injunction was properly dissolv- 
 ed. 
 
 The bill does not state sufficient equity, to entitle the ap- 
 pellants to a discovery. It states generally, that the re- 
 spondent had made a demand upon one of the appellants, as 
 executrix of Peter Schuyler, deceased ; and that as he did 
 not produce any voucher, she had refused to pay him. It 
 states further, that he proposed an arbitration which she re- 
 fused, and that finally, he had brought a suit against the 
 appellants, in the supreme court. The bill states further, 
 that the appellants know nothing of the demand of their 
 own knowledge, but that they believe it unjust, because the 
 respondent took no measures to liquidate and settle it, in the 
 life-time of Peter Schnylcr^ and does not now produce any 
 vouchers, and has been inconsistent, in what he has from 
 time to time said, as to the nature and extent of his de- 
 mand. 
 
 This is the substance of the bill ; it amounts to this, the 
 respondent has sued us at lavr, and we do not know for
 
 #300 CASES IN ERROR IN THE 
 
 ALB AN V. what, and therefore we ask for a discovery *beiorcaand, 
 Newkerk although we have reason to conclude he has sued us upon 
 Wiiiett some groundless pretence.f Such a bill shows no equity, 
 no right to a discovery. It sets forth no matter material to 
 
 492. Ve 2 *Fmib a defence at law, and which cannot be proven, unless by the 
 599' l Vem ' confession of the opposite party. It is, to use Lord Chan- 
 cellor Hardzvkke's expression, a mere fishing bill, seeking 
 generally, a discovery of the grounds of the respondent's 
 demand, without stating any right, to entitle them to it ; 
 such a bill may be exhibited by any executor or administra- 
 tor, and indeed by any defendant, who is not already in 
 possession of the plaintiff's proofs. But the court of chan- 
 cery has wisely refused to sustain bills for discovery in such 
 latitude, and unless the party calling for a discovery will 
 state some matter of fact material to his defence, or which 
 he wishes to substitute by the confession of the defendant, 
 the court will not enforce a discovery. 
 
 I am accordingly of opinion, the appellants in the present 
 case were not entitled to a discovery, and that the injunc- 
 tion staying the suit at law was properly dissolved, and that 
 the order for that purpose be affirmed. And further, that 
 the appellants pay to the respondent his costs of the ap- 
 peal to be taxed. 
 
 Judgment of affirmance unanimously. 
 
 * 103 ^(SUPREME COURT.) 
 
 James Jackson, ex dem. the new loan officers of 
 ' Remselaer county, and John Crabb, against Isaac 
 Bull. 
 
 A sale by loan THIS case was stated thus : John Crabb. one of the 
 
 officers, at auc- 
 
 tion, is within i essO rs, purchased of the new loan officers, at public auc- 
 
 the statute of 
 frauds. If a bar- 
 gain for the purchase of land be concluded, and, at the expiration of some time, the con- 
 veyances duly executed, the subsequent deeds will so far have relation to the day of conclu- 
 ding the bargain, that an in termediute sale by the vendee will be good against him and his 
 privies, and the possession of the original vendor, at the time of such second sale, cannot be 
 urged as a pos.sessipn adverse to the vendee, and that, therefore, nothing passed by his deed.
 
 STATE OF NEW- YORK. 
 
 301 
 
 lion, on the 3d Tuesday in. September, 1795, one hundred 
 and sixtv acres of land. On the 31st October, and 4th 
 November, following, he sold, by deed of bargain and sale, 
 one hundred and forty acres, parcel, &c. to Abraham Fran- 
 cisco, under whom the defendant claims ; and on the 5th 
 'f.mnary, 1796, he obtained his deed from the loan officers, 
 in pursuance of his former sale, and now brings his eject- 
 ment on the latter deed, to recover the whole one hundred 
 and sixty acres. 
 
 Question. Is he entitled to recover ? 
 Per Curiam, delivered by KENT, J. I incline to the 
 opinion that no legal estate, except a mere tenancy at will, 
 vested in Crabb, until the loan officers had executed the 
 deed. The statute of frauds prevents any greater estate 
 from vesting without writing, and it is, besides, a general 
 rule of law, that a corporation cannot sell land without 
 deed ; and the loan officers, in the present instance, are 
 ordered by the act,f to convey the land they sell at auc- 
 tion, by deed, under the loan office seal. 
 
 But I adopt, as a just rule of construction, and appli- 
 cable to the present case, the principle laid down by this 
 court, in the case of Raymond v. Jackson, ex dem. Junefi 
 " that whenever it is intended to be shown, that nothing 
 passed by a grant, by reason that at the *time, there was a 
 possession in another, adverse to the grantor, then the time 
 to which the grant is to relate, is the time when the bar- 
 gain for the sale was finally concluded between the par- 
 ties ; and that, consequently, any intermediate adverse 
 possession, before the execution of the conveyance, (which 
 is the only technical consummation or evidence of the 
 grant,) can never affect it." In the present case, there- 
 fore, the deed to Crabb, of the 5lh January, 1795, shrill 
 have relation back to the 3d Tuesday of September, 1795, 
 being the time of the final conclusion of the bargain, by 
 the sale and purchase, at public vendue, so as to render 
 valid any intermediate sale or disposition of the land, by 
 Crabb. Even supposing the deed of the 5th January, 
 1796, could not have this retrospective force by relation to 
 
 ALBANY. 
 
 Jiicksou 
 
 . 
 
 \Jan- Term,
 
 NY " the time of the conclusion of the sale and purchase at the 
 
 ^^^ vendue, still Crabb can never be permitted to claim in op- 
 
 Bu v n position to his deeds of the 31st October, and 4th November , 
 " by alleging, that he had no estate in the premises. 
 
 Co. C Litt. 'is': For if a man make a lease by indenture of land which is 
 47. b. 352. a. b. t fa or j evy a fi ne o f an estate not vested, and he af 
 
 4 Co. 53. a. 2 . . , 
 
 Mod. us. 6 terwards purchases the land, he shall, notwithstanding, or 
 sm^ld. Ray- bound by his deed, and not be permitted to aver he had no- 
 TP.'W. 373. thing. Whether a person can, in such case, be said tech- 
 nically to be estopped, because it is of the nature of an es- 
 b. 265. b!"so*L' toppel, to bind privies as well as parties ; and Coke gives an 
 Lin. sec. C37. instance? where in an act of this kind, without warranty, 
 will bind the grantor and not his heir ; and whether a deed 
 a v'b L f el', can operate at all by way of estoppel, if any interest passed 
 53. b 3 P. Wms, by \^ are points on which I forbear to give an opinion, be- 
 * 3 303 cause they are *not only something difficult, but not neces- 
 
 sary to be discussed. 
 
 In the present case, there can be no doubt but that Crabb 
 himself shall never claim against his own deed. 
 
 I am of opinion, therefore, that judgment be rendered 
 for the plaintiff, for the twenty acres only. 
 
 Judgment for the plaintiff. 
 
 (SUPREME COURT.) 
 Johnson against Bloodgood. 
 When a note is THIS was an application to set aside a verdict, rendered 
 
 purchased after . ., 
 
 due, every pre- for the plamtltt. 
 
 S e m mad e Y S ains t From the judge's report, the present appeare 
 t^pmSen ^.^ brought f or the benefit of the creditors of the plain- 
 iat e e' e it n toi.ave - ff d ^is name used merely to satisfy the forms of 
 
 been generally 
 
 in such a year, \QW. 
 
 and the maker 
 
 has assigned fi , T ., i n that year, it shall he presumed, 
 
 ^ 
 
 ^solvent? be set off against a debt due to the ^solvent'* estate
 
 STATE OF NEW-YORK. 393 
 
 The point to be decided was this ; whether, in a suit ALBANY. 
 brought by the assignees of an insolvent debtor, in his *~*~^>~' 
 
 Johnson 
 
 name, but for the general benefit of his creditors, the de- v. 
 
 fendant shall be permitted, under the plea of payment, to g '__ 
 
 set off a note of the insolvent, purchased after it became 
 due, and after the assignment of the insolvent, though 
 without actual notice of it, at the rate of 12s. in the pound, 
 and for the purpose of such set-off. 
 
 KENT, J. This suit is substantially, between the credit- 
 ors of Johnson and the defendant. It is now well under- 
 stood, that courts of law will take notice of assignments 
 and trusts, and consider who are beneficially interested, 
 and will protect the cestui que trust. ,f fD. & E. 620. 
 
 *In giving my opinion, I mean not to question the law * 304 
 
 that a bill or note may be negotiated after it is due,J and be * i Ld. Ra ym . 
 declared upon as such. But I approve and adopt, as salu- 
 tary, and calculated to prevent fraud, the doctrine laid 
 down in the cases of Brown and Davis, and Taylor and 3 o u mf. so. 
 Mather, that if a bill or note be endorsed after it becomes 
 due, it throws a suspicion on the transaction, and the en- 
 dorsee shall take it, subject to all the equity that existed in 
 favour of the maker of the note, before it was endorsed ; 
 and if there be any attendant circumstances of fraud, the 
 endorsee shall have every presumption turned against him. 
 So in the present case, the defendant, stating only general- 
 ly the year 1793, in which he purchased the note, it shall 
 be presumed he purchased it after the 16th January 1793, 
 the date of the assignment of the insolvent's estate. 
 
 When a note is offered for sale, after it has become due, 
 and at a discount, what is the necessary inference ? most cer- 
 tainly that the maker is insolvent ; and, if so, his effects 
 and credits ought immediately to enure to the benefit of his 
 creditors, and he be regarded but as their trustee. 
 
 The presumption will be, because, so, indeed, justice 
 would dictate, that the insolvent makes forthwith, a full 
 and frank disclosure and assignment of all his property, for 
 the payment of his debts. And if the insolvent do, in
 
 304 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Johnson 
 
 v. 
 Blood good. 
 
 * 305 
 
 $ 6 Durnf. 59. 
 
 fact, make such an assignment, the purchaser in such a 
 case, of a note, after the assignment at a depreciated rate, 
 for the purpose of a set-off, though he may not, in fact, 
 know of the assignment, is nevertheless properly chargea- 
 ble with having acted under the presumption of notice oi 
 the ^assignment. The law infers the notice, being wlir-' 
 & termed constructive notice. 2 Fonb. 155. He accord- 
 ingly commits a fraud upon the creditors ; he does an act 
 mala fide, and, as Lord Kemjon observed, in a case no! 
 very unlike the present, tk it would be most unjust, indeed, 
 if one person who happens to be indebted to another, at the 
 time of the bankruptcy of the latter, were permitted, by an 
 Intrigue between himself and a third person, so to change 
 his own situation, as to diminish or totally destroy the debt 
 due to the bankrupt, by an act ex post facto"^ 
 
 I accordingly continue in the opinion that was given at 
 the trial, that the note purchased by the defendant was in- 
 admissible testimony, under his plea of payment, and that 
 the defendant take nothing by his motion. 
 
 Motion denied. 
 
 (SUPREME COURT.) 
 Betts against Turner. 
 
 THIS was an action of covenant, and the declaration sta- 
 a note not nego- te d in substance, that John Baker, on the 17th October, 
 
 tiable,\vitli a co- 
 
 venant by the 1795 rr a ve a promissory note to William Hooker, by which 
 vendortopftytbe 
 
 vendee a cer- 
 tain sum, " if the vendee should take all and every legal step the law directs, to prosecute to 
 effect the maker and payee, to wit, if the vendee and no one in his name, or in that of the 
 maker, could recover judgment legally, against the maker on the note, or against the payee, 
 in case he had, at the date of the covenant, or should previous to the suit against the maker, 
 
 On the sale of 
 
 le assigi 
 
 of 
 
 the country the payee be, in such case, liable for the amount without first showing a legal en- 
 deavour, by suit, to recover the amount against the payee. Covenants are to be construed 
 not merely by their letter, but their spirit.
 
 STATE OF NEW-YORK. 3 
 
 he promised to pay him, or his order, on the 1st day of ALBANY. 
 April, 1797, 833 dollars and 33 cents; that the defendant 
 sold the note to the plaintiff, to be by him collected at his 
 own risk and costs, as it respected the ability of Baker and 
 Hooker, and that the defendant covenanted to and with the 
 plaintiff, to pay him 2,000 dollars when required, "in case 
 the plaintiff should take all and #every legal step as the law 
 directed, to prosecute to effect Baker and Hooker; to wit, 
 if the plaintiff, and no one in his name, or in Hooker's name, 
 could recover judgment legally against Baker,' on the note, 
 or against Hooker, in case he had, at the date of the cove- 
 nant, or should, previous to the suit against Baker, dis- 
 charge the note." 
 
 The declaration further stated, that Baker resided in 
 Massachusetts, and that on the 31st July, 1797, the plain- 
 tifi sued Baker in Hookers name, according to the laws of 
 Massachusetts; that Hooker came into court and demi.ig 
 that he had ever authorized the suit, the court dismissed it ; 
 that the plaintiff had taken all legal steps to sue Baker upon 
 the note, and that he could not sue upon it in his own name, 
 either Baker or Hooker ; that Hooker had never negotia- 
 ted the note, so as that any person could sue upon it in his 
 name but himself; and that Hooker had never discharged 
 the note. 
 
 To this declaration the defendant pleaded, that Bakef 
 and Hooker reside in Massachusetts, and that the note was 
 sold by Honker to one Cole, and by him to one Bocth, and 
 by Booth to the defendant, who sold it to the plaintiff; that 
 such notes were not negotiable by the laws of Massachu- 
 setts, so as to enable the assignee to sue in his own name > 
 but that he could sue in the name of the original payee, and 
 that if the payee released the suit or discharged the note, he 
 became liable to the holder, for the amount of su< h note, 
 of which law the plaintiff, at the time of the delivery of 
 the note, had notice ; and that the plaintiff did not prose- 
 cute Hooker, nor attempt to recover a judgment against him 
 
 3-K 1
 
 506 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 on the note, as he might and ought to have done, according 
 to the laws of Massachusetts* 
 
 *To this plea there was a general demurrer and joinder* 
 
 307 
 
 Per Curiam, delivered by KENT, J. By the covenant it 
 appears, that the plaintiff was to do a previous act, to enti- 
 tle him to maintain a suit oil the covenant. This previous 
 act, like all other stipulations in covenants, must be done 
 fairly and faithfully, according to the spirit and intention of 
 the agreement. It may be proper to observe, as a rule in 
 the construction of covenants, that they are to be performed 
 according to their spirit rather than their letter, " ut res ma- 
 gis valeat quam per eat" 
 
 The beneficial end that the parties had in view, is to be 
 primarily regarded and enforced ; and, therefore, when an 
 obligee engaged to deliver up his obligation to the obligor, 
 by such a day, and he, in the mean time, put it in suit, re- 
 covered upon it, and then delivered it ; this, although a 
 compliance with the words of the agreement, was held no 
 t Cro. EH'z. 7. performance of the 'intent.^ So, where A. covenanted 
 with B. that he should enjoyaterm of six years, dischar- 
 ged from tithes, and a suit was brought, after the expiration 
 of the term, for the intermediate tithes, it was held, that 
 B. was as much prejudiced by a suit after the term as he 
 would have been before, and that the intent of the covenant 
 was, that he should be freed from suit and payment ; the 
 
 * Cro. Eli,. 91G. covenant, therefore, broken.^' By the same just and liberal 
 
 rule of interpretation, it is declared, that if one covenant 
 to deliver the grains made in a brewhouse, and in the mean 
 time he mix them with hops, so as to render them unpalata- 
 ble to cattle ; or engage to deliver so many yards of cloth, 
 and he cut it in pieces, and then deliver it; or if he cove- 
 nant to leave the timber on the land, at the expiration of a 
 
 * 308 lease, and he *cut it down and so leave it, these, and 
 T. Raym. 464. numerous ot her instances of the like kind, to be met with 
 If See ISM. 48. in the books,1t are all alleged to be breaches of the cove- 
 nant because, the law regards not * literal but a real and 
 
 151,
 
 STATE OF NEW- YORK. 308 
 
 faithful performance of contracts, according to the intent ALBANY, 
 of the parties. 
 
 These principles ought to be kept steadily in view, as hav- 
 ing an application to the present case. ; 
 
 It is pretty obvious, that the defendant did not intend to 
 pay the 2,000 dollars, until the plaintiff had faithfully tried, 
 and tried in vain, to recover the amount of the note from 
 Baker and from Hooker. The note was sold to the plaintiff 
 to collect at his civn risk, so fir as respected the ability of 
 BakgrvaA Hooker; and it was a condition precedent to the 
 payment of the money by the defendant, that the plaintiff 
 should take all and every legal stt p, as the law directed, to 
 prosecute to effect Baker and Hooker. He did take those 
 steps to prosecute Baker, but not to prosecute "Hooker, al- 
 though the latter became liable to him, for releasing the suit 
 he had instituted in his name against Baker. 
 
 Here, then, appears a palpable failure on the part of the 
 plaintiff, of an act which was necessary to entitle him to his 
 suit against the defendant ; I mean the failure of taking the 
 steps by law directed, to prosecute to effect Hooker as well 
 
 as Baker. 
 
 It may, however, be objected, that the case in which 
 
 Hooker is to be prosecuted, is afterwards particularly sta- 
 ted in the covenant, and that Hooker was only to be prose- 
 cuted, if he had, at the date of the covenant, or should, 
 previous to the suit against Baker, discharge the note ; and 
 that, never having ^discharged the note, the plaintiff was 
 under no necessity, by the covenant, of prosecuting him. 
 To this, I answer, that, although this be the letter, it can- 
 not be the intent, of the agreement. The agreement, in 
 the first instance, provides generally, that the plaintiff shall 
 prosecute to effect both Hooker and Baker, and it then pro- 
 ceeds to specify the instance in which Hooker is to be pro- 
 secuted ; to wit, if he had then already, or should, pre- 
 vious to a suit against Baker, discharge the note. But the 
 rational meaning of the covenant, deficient as it may be \\\
 
 309 CASES IN ERROR IN THE 
 
 ALBANY, perspicuity and precision, cannot be otherwise than this ; 
 
 ^^^**"^ that the plaintiff should first prosecute Baker, and if Hooker 
 
 v - should prevent him from recovery against Baker* that he 
 
 Turner. 
 
 . should then prosecute Hooker. 
 
 The defendant seems to have contemplated but a single 
 case, in which Hooker could prevent a recovery, and that 
 case, which was the discharge of the note, he has specified; 
 whereas, an interference in Hooker, by discharging or re- 
 leasing the suit, was an equal impediment to a recovery, 
 and equally exposed Hooker to a prosecution. 
 
 The plaintiff was to take every legal step to obtain a 
 recovery, both against Baker and Hooker, but he omitted to 
 take any step against Hooker, and now alleges, as his suffi- 
 cient excuse, that Hooker did not prevent a recovery against 
 Baker in the manner mentioned and expressly provided for 
 in the covenant. It is true, he prevented a recovery by 
 discharging the suit; but he did not prevent a recovery by 
 discharging the note, and he must prevent the recovery *in 
 the latter mode, and not in the former ; otherwise he was 
 not to be prosecuted. 
 
 1 dislike any such subtle distinction, calculated, as it ap- 
 pears to me, to elude the end and design of the covenant ; 
 for I cannot conceive any possible inducement, on the part 
 of the defendant, to stipulate, that the plaintiff should pre- 
 viously prosecute Hooker, if he prevented a recovery 
 against Baker, by discharging, the note, which would not 
 equally be felt, and equally operate, if Hooker prevented a 
 recovery against Baker, by discharging the suit. And for 
 the plaintiff to pretend, that he was bound to prosecute 
 Hooker, in the one case, because it was expressly mentioned 
 in the covenant, and not bound in the other case, because it 
 happened to be omitted, although precisely within the same 
 reason, is for him to construe the article by its letter, and to 
 disrt gard its spirit. It is, in allusion to the cases mentioned, 
 to deliver up the obligation by the day, but in the mean time, 
 to prosecute and recover upon it. It is to deliver the cloth,
 
 STATE OF NEW-YORK: 
 
 but after it is cut to pieces. It is to leave the timber on ALBANY. 
 the land, but to leave it prostrate. . ^*r~v~*+s 
 
 I am, accordingly, of opinion, that the plaintiff has not v. 
 
 shown, in his declaration, the requisite previous perform- 
 ance on his part, and that judgment ought to be rendered 
 for the defendant. 
 
 Judgment for the defendant. 
 
 *Frost against Carter. * 311 
 
 FROM the circumstances stated in this case, it appeared, If the endorser 
 
 . . . r , of a note pay it 
 
 that the defendant, on the 3d day ot January, 1792, gave after th.- dis- 
 
 . . . . _ . c change of the 
 
 the plaintiff a promissory note tor 9,299 dollars and 44 cents, insolvent ma- 
 payable in 90 days ; that the plaintiff endorsed the note, and insolvent ^nr, 
 
 it went into circulation ; that it was not paid when due ; ^M.ur't'! a 
 
 that the defendant was afterwards discharged under the sef i uent . r f co ;, e " 
 
 ry against the 
 
 insolvent act, and, at the time of the discharge, the note maker. 
 belonged to Archibald Mercer; that subsequent to the dis- 
 charge, to wit, on the 1st July, 1 794, the plaintiff paid 
 3OOO dollars, took up the note, and brought this suit to 
 recover that money back from the defendant. 
 
 The question upon these facts, was whether the debt, 
 now claimed of the defendant, was a debt which the plain- 
 tiff could have asserted ae his own, and have verified upon 
 oath, as a specific and certain debt on the 2d day of March, 
 1793, when the defendant procured his discharge? In 
 other words, was it a debt- provable against the estate of 
 the insolvent? 
 
 Per Curium, delivered by KENT, J. The act of insol- 
 vency, of the 21st March, 1788, in pursuance of which the 
 defendant obtained the discharge which he now sets up, in 
 bar of the plaintiff's right of action, extends the discharge
 
 311 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Frost 
 
 v. 
 Carter. 
 
 # 312 
 
 * 313 
 
 to such debts, and to such debts only, as are due 'at the time 
 of the assignment of the insolvent's estate, and to debts 
 contracted for before that time, though payable afterwards. 
 Those debts must be specific, and certain sums of money, 
 to which the creditor can make oath, as being "*justly due, 
 or to become due at some specified time. Unless the cre- 
 ditor, at the time of the assignment, be able to produce and 
 verify such debt, in such manner, he would not be entitled 
 to receive from the assignees, his dividend of the insol- 
 vent's effects, nor would he be barred from his future action 
 against the insolvent. 
 
 Therefore, although the plaintiff in the present suit was, 
 as I take for granted, on non-payment of the note by the 
 defendant, duly fixed as endorser, and although this was 
 prior to the defendant's discharge, yet, until he had actually 
 paid the holder of the note, and taken it up, he could not be 
 said to have a certain and ascertained debt due to him from 
 the defendant. His demand upon the defendant depended 
 upon the defendant's final non-payment of the note, and his 
 payment of it for him. He stood, in respect to the defend- 
 ant, in the relation of a surety only ; and what portion of 
 the note, if any, short of the whole sum, the defendant him- 
 self might be able to pay the holder, was a matter altoge- 
 ther uncertain. So that the plaintiff, until he paid the 3,OOO 
 dollars, and took up the note, had not any specific and cer- 
 tain debt due to him from the defendant, and as, therefore, 
 this debt, which is now demanded, accrued subsequent to 
 the defendant's discharge, and, in consequence of an actual 
 payment by the plaintiff, the plaintiff was not entitled to 
 claim his debt from the assignees of the defendant, and, 
 consequently, the discharge of the defendant cannot be a 
 bar to a recovery in the present suit. 
 
 *This construction of the operation of our insolvent act, 
 is the same with that of the English bankrupt law in const- 
 mill casu. 
 
 The stat. 4 and 5 Ann. c. 17. which was continued by 
 the stat. of 5 Geo. II. c. 30. sec. 7. extends the discharge of 
 4
 
 STATE OF NEW- YORK. 
 
 the bankrupt to all debts by him due or owing at the time he 
 became a bankrupt, and the stat. of 7 Geo. I. c. 31. extends 
 it to debts contracted before the bankruptcy, though payable 
 after. These statutes, in this respect, are to the same effect, 
 and almost precisely in the same words with our act of in- 
 solvency, when it declares the force and extent of the insol- 
 vent's discharge. 
 
 By the English decisions upon those statutes, it has been 
 frequently determined, and seems to be a rule permanently 
 settled, that if the creditor, at the time of the bankruptcy, 
 had not a certain debt due, to which he could attest by oath, 3 wug. 14. 269. 
 and which he could bring in under the commission of bank- < Dumf. 4*9! 
 
 ruptcy, he is not barred by the bankrupt's discharge; and, l 
 in like manner, that a surety, although he be liable before^ 
 yet if he does not actually pay the debt till after the act of 
 
 bankruptcy be committed, he then cannot prove it under :he 3 Jr ' 7f - 3ir 
 > _ * drop. 5-.>ii. 
 
 commission, and may resort to the bankrupt. Dumf. 5'j'j. 
 
 It has been objected, and with some plausibility, to this 
 doctrine, that if a debt be due at the time of the assignment 
 to any one who might have proved it, it must be done away 
 by the discharge ; for that the insolvent is discharged from 
 all his then dibts to whomsoever they may belong, and that 
 if, when discharged from the action of one creditor, he were 
 to remain liable *at the suit of another for the same debt, it 
 \yould be no discharge at all. These objections were raised 
 and overruled in the cases of Taylor v. Mills and Magnattft f Covp. HS. 
 
 and of Brooks v. Ro^ers.\ The answer appears to me to * 1 //. Blacl. 
 
 640. 
 be plain and sufficient, that where a plaintiff cannot prove a 
 
 debt till he has actually paid the money, and the payment be v 
 of the proper debt of the insolvent, and after the assign- 
 men of his estate, the cause of action in such case arises 
 after *he insolvency, although upon a pre-existing ground, 
 and as re cannot exhibit his debt to the assignees, because 
 there was no sum due, to which he could attest when th-; 
 assignment vas made, it is highly, nay, indislxmsably just, 
 that he should resort to the insolvent himself.
 
 CASES IN ERROR IN THE 
 
 I am, accordingly, of opinion, that judgment be rendered 
 for the plaintiff. 
 
 Judgment for the plaintiff. 
 
 (SUPREME COUKT.) 
 
 Jackson, ex dem. Jane Van Alen, against Rogers* 
 A parol gift of THIS was an action of ejectment for a store arid lot at 
 
 lands creates r ,. . . . , . , .*, ... -,, ,. 
 
 only a tenancy Kinder hook, on a demise laid 1st June, 1795. I he apph- 
 fionee lease, and cat i n was to set aside a verdict for the plaintiff, and grant 
 the donor do not a new ^^ xhe facts of the case were these : 
 
 ratify his act, 
 
 the mere per- Lawrens . Fan Alen was in possession of the premises 
 
 mitting the les- 
 see to build and for a period of more than SO years before the bringing of 
 
 enjoy under the 
 
 term, will not the present suit, john C. Holland married his daughter, 
 noHVom legacy an( ^ was a drunken dissipated character, frequently request- 
 iandTalfd his de- In 8 Lawrens for a deed of the premises, and was as often 
 ver ee wUhout e no re ^ usec l : at ^ ast ^ e > Lawrens, said to him, and but once, 
 ticeto quit. we u John, *you may take the kraal, (meaning the premi- 
 ses,) and I will deduct 607. from your wife's portion ;" no 
 writings were signed, and these expressions were before 
 building the store in question. 
 
 Holland afterwards leased the premises to McMechen for 
 , nine years, and McMechen, in consideration, was to build a 
 store on them; he did so, and at the time he began to 
 build, Lawrens had grain on the premises. Lawrens was 
 at first dissatisfied when he heard Holland had made the 
 lease, but afterwards was satisfied, saying it would benefit 
 Holland's children. The lease was made in the year 17#5. 
 In August, 1794, Holland (the first lease being out) nude a 
 second lease to McMechen (the partner of the defendant) 
 for five years, at the annual rent of 30/. Lawrem \ieard of 
 the second lease from strangers, and was dissatisfied with 
 it, particularly when he found the rent was not to benefit 
 Hollands children. He frequently talked of taking the
 
 STATE OF NEW-YORK. 
 
 315 
 
 316 
 
 property into his own hands, and afterwards devised the 
 lands to the lessor of the plaintiff for life, by will dated 19th 
 June, 1790. Laivrens died in May, 1795 ; the action was 
 brought without any notice to quit. 
 
 The question on these facts submitted to the court was, 
 ought the lessor of the plaintiff to recover? 
 
 Per Curiam, delivered by KENT, J. In the argument 
 for a new trial in this cause on behalf of the defendant, it 
 was contended that the lessor of the plaintiff ought not to 
 recover : 
 
 1st. Because the lease from Holland to McMechen 
 amounted to a disseisin of Laivrens J. Van Alen, and de- 
 stroyed his capacity to devise. 
 
 2d. That the second lease from Holland to McMechen, 
 was still subsisting at the commencement of the suit, and 
 was a lawful impediment to the plaintiff's recovery. 
 
 *3"d. That the defendant was, at all events, to be deemed 
 a tenant from year to year, and so entitled to six months* 
 notice to quit. 
 
 1st. To constitute an actual disseisin, or one In fact, \ Burr. 79. 1 
 
 Salk. 246. 
 
 there must be a tortious entry and an actual expulsion. JNo 
 such thing appears, or was pretended in the present case, 
 nor was there a disseisin admitted by election. The dis- 
 tinction of a disseisin by election, as contradistinguished 
 from diss-isin in fact, was taken for the benefit of the owner l B urr. no. 
 
 Sandcnonl'set, 
 
 of the lands, to extend to him the easy and desirable remedy 24o. 
 of assise, instead of the more tedious remedy of a writ of 
 entry. Whenever an act is done, which immediately, and 
 of itself, creates an actual disseisin, it is still taken to be an 
 actual disseisin, notwithstanding the introduction of the 
 doctrines of disseisin by election ; as, if a tenant for years, 
 
 or at will, should enfeofF in fee ; and on the other hand, Sanders on 
 
 ... Uses, MO, M( 
 those acts which are susceptible of being made disseisins bij 'z\^. /intiei-'t 
 
 ... , , . , , Co. Lit. r>30.b.n. 
 
 election, are in fact no disseisins till the election makes mem as.s. Hm-g. t', 
 
 it i r i f rr Lit, 57 tU '' 
 
 so; as it a tenant at will, instead ot making a leoftment m 
 fee, should only make a lease for years. 
 
 ' 3 L
 
 316 CASES IN ERROR IN THE 
 
 ALBANY. No such election was ever made in the present case, and 
 
 consequently there was no disseisin. Making a devise has 
 been deemed, in a similar case, an intimation of an election, 
 not to be disseised ; and if Holland was tenant at will, (and 
 
 Patoj.205. Cro. greater interest can be inferred in him, because no 
 
 J. 6o9. 1 tturr. 
 
 i vi, H3. Cowp. rrea ter interest can be created by parol,} a lease for years by 
 
 C93. 
 
 i Burr. in. . him can be no disseisin, unless the true owner elect to make 
 it so, nor does it destroy his capacity to devise. 
 
 These are briefly the settled distinctions between dis- 
 seisins in fact, and ' disseisin by election. They were 
 i Burr. 60. generally hinted at or brought into view, commented #upon 
 and explained, in the case of Atkins and Horde, one of the 
 most learned and elaborate judicial discussions on a ques- 
 tion of real property to be met with in modern times, and 
 they are likewise historically and ingeniously illustrated by 
 y. W. Butler, in one of- the notes to his edition of Coke upon 
 Littleton. 
 
 I shall therefore pass the whole of this doctrine by, as 
 having no influence on the present case, nor should I have 
 noticed it at all, had not the counsel for the defendant 
 appeared to rely much upon it, and to consider it as strong 
 ground in the cause. 
 
 2d. In respect to the existence and force of the second 
 lease from Holland to McMcchen. I would observe, that 
 notwithstanding the gift of the premises to Holland by 
 Lawrens, he had never any greater interest in them than an 
 estate at will, because Lawrens, to whom the premises be- 
 longed, never alienated them to him by deed or writing, 
 nor made any parol demise of the same for a term not ex- 
 ceeding three years, and reserving a rent thereon. Holland 
 was, consequently, by the force and effect of the statute of 
 frauds, but a tenant at will, when he made the first lease to 
 JlcMechen ; and when he made the second lease, he was 
 still but a tenant at will, and so had no authority to make 
 either lease, because such authority resides not in a tenant 
 at will; nor can a parol gift of land in fee operate as an 
 authority to make leases, because the statute of frauds de-
 
 STATE OF NEW- YORK. 31T 
 
 clares expressly what shall be the operation of such parol ALBANY. 
 grant ; it shall " have the force and effect of leases or N< "V"**'' 
 estates at will only, and shall not have any other, or greater 
 force or effect." I therefore do not regard any intimation 
 that may be given by the circumstances of the subsequent i JJumf. 94. 
 assent, either tacit or express, of Lawrens, to either the first nl"ug. 50" 7 
 or second lease ; because it is a settled doctrine that no ju& 85 ' C) 
 subsequent assent will make good a void lease, although sub- * 318 
 
 sequent acts may operate as a new grant. Both the leases 
 to McMechen were, therefore, from the beginning, null and 
 void, because made by a tenant at will who has no capacity 
 to grant. 
 
 3d. The third point is, whether the defendant was enti- 
 tled to notice to quit. 
 
 Where the holding is not for a determinate period, but 
 from the reservation of an annual rent, or from other cir- 
 cumstances, is susceptible of being construed into a holding 
 from year to year ; in such cases the courts have adopted 2 Slack. Jttp. 
 as a rule favourable to the interests of both landlord and ' 
 tenant, that neither party shall determine the lease without 
 six months' previous notice to the other, of that intention ; 
 but where the lease is for a definite period, or determinable i Durnf. id. 
 on a certain event, no notice is requisite, as both parties are 
 apprized of the termination. So if the tenant be strictly a 
 mere tenant at will, as where one enters under a void lease ; 
 there, I apprehend, no notice is necessary. The Nisi Prius 
 decision in the case of Goodtitle, ex dem. Adeare v. Prentice, Es P- Afr.418. 
 before Gould, J. in 179O, is expressly to this point. 
 
 In the present instance the defendant, the partner of cr. E. 8 so. 2 
 McMechen, entered under a void lease, and became a mere ;j' : / v 170. 
 trespasser, if Lawrens chose to make him so, and so con- 
 tinued to the bringing of the suit ; no subsequent agreement 
 was made, no actual rent was stipulated for between him 
 and Lawrens, none was demanded or paid. Lawrens did 
 nothing to recognise *him as his tenant, and to creatr be- * 319 
 
 tween them the relation of landlord and tenant, and conse- 
 quently no notice was necessary.
 
 CASES IN ERROR IN THE 
 
 I am, accordingly, of opinion, that the defendant take iio 
 thing by his motion. 
 
 The People r . , -re 
 
 v . Judgment ior the plamtm. 
 
 The Sessions of 
 Chenango. 
 
 (SUPREME COURT.) 
 The People against The Sessions of Chcnango. 
 
 The Sessions THIS was an application for a mandamus, forbidding the; 
 new* trial 8 on" the Sessions of Chenqngo from proceeding on a new trial they 
 
 merits ; if they u i orantpd 
 do, a mandamus nau g rarue "' 
 will go forbid- 
 ding them to 
 
 proceed. Per Curiam, delivered by KENT, J. Let the mandamus 
 
 go. The sessions cannot grant a new trial upon the merits* 
 It is a power not exercised by this court, after verdict in 
 cases of felony, and perhaps it is expedient it should not 
 be. This court had by its original constitution by ordii 
 nance, the superintending control of all inferior jurisdic- 
 tions within the state, and this power has never been taken 
 away. It has been from time to time recognised by law, 
 and in constant and vigilant exercise. All courts within 
 the several counties have, from the first foundation of our 
 judicial system, been regarded by law and by practice as 
 inferior courts ; they can be compelled to duty by a inanda- 
 tj- prohibitions mils ; they can be restrained from usurpation by prohibition.^ 
 >a'e wheu The causes and pleas before them, can be arrested and re- 
 acu n Sou C t 0l ju- moved by habeas corpus or csriiorari, and their judges can 
 i-isdiction. They fa att , c h e d brought before this court, and punished for dis- 
 
 \vill lie to courts- 
 
 inartiaK See the obedience. A.H these are distinguished and essential marks 
 
 jpase of Grant, 2 ...... 
 
 H. Mack. G<J. o f supremacy in the one court, and of inferiority in the 
 Bother ; they are, therefore, within the reason and meaning 
 of the law, inferior courts, and such courts are not entrusted 
 by law, with the power of setting aside verdicts of juries 
 upon the merits. It has been the uniformly received usage 
 and understanding on the subject, until very lately, that tha,t
 
 STATE OF NEW-YORK. 320 
 
 power was exclusively confided to this court ; it can neither ALBANY, 
 be taken from this court, nor assumed by the sessions with- The People 
 out express words. The 8 ^ mt of 
 
 There are strong reasons for the law withholding the _^ nanf ^'_ 
 power from the courts of general sessions of the peace. All 
 the justices of the peace, within the county, are judges of 
 the court. This renders it a very numerous tribunal, and 
 divides and weakens the responsibility of the members. 
 The justices are laymen, and cannot be supposed to have 
 been taught or trained in the science of law. The power 
 of awarding new trials on the merits, is a power necessarily 
 resting in sound legal discretion. The reasons of the exer- 
 cise of that discretion, are not stated on the record, and are 
 not susceptible of review by this court. The power may 
 be grossly abused ; different principles and contradictory 
 practice may be assumed in different courts ; verdicts may 
 be set aside, ad infinitum, till juries are worried into sub- 
 mission ; they might be set aside where the prisoner is 
 acquitted, as well as convicted, and the power thus unli- 
 mited and unreviewed, might go to the destruction of trial 
 by jury; to overturn the rights of the citizen ; to shake the 
 stability of government, and destroy all system and harmony 
 in our jurisprudence. 
 
 I am, with perfect satisfaction, of the opinion, that this 
 great and transcendant trust, rests solely with this court ; 
 a court which the constitution and law *has taken care so to * 321 
 
 organize, as to contemplate it fit and competent, for the 
 due and safe exercise of this very delicate power. We 
 cannot alienate any part of our trust ; we are responsible 
 for its safe keeping, and that no waste be committed on a 
 power we hold for the security of our citizens, in their 
 liberties and estate.
 
 321 CASES IN ERROR IN THE 
 
 (SUPREME COURT.) 
 Lodge against Phelps. 
 
 An action is THE question in this case was, can the assignee of a 
 'on "a promissory note given in Connecticut maintain a suit upon 
 r S? ^ here ln his own name > since he is not P ermitted to do so 
 
 wte by the hold- 
 er, though made 
 in Connecticut, 
 where the suit 
 
 must be in the p er Curiam, delivered by KENT, J. I hat personal con- 
 gi a imf payee! " ~ tracts, just in themselves, and lawful by the law of the land 
 where made, are to be fully enforced according to the in- 
 474 \"Sn kl p tent of them ' notwithstanding any change of habitation by 
 C. 41. \_Biack. tlie part ies, is a principle of justice and social policy which 
 
 3ep* 237 ? 238. , _ . -Q v 
 
 258. 7 Dumf. OU ght every where to be received and supported. 
 
 admission of the lex loci contractus can have reference on- 
 
 2 Zrs if?/ Iv to the nature and construction of the contract, and not 
 
 1 lios. cs jruU- J ' 
 
 J42. to t he mode of enforcing it ; for every country must am 
 
 will have precedents and judicial forms peculiar to itself, 
 and under the solemnity of these forms will enforce con* 
 tracts according to their true intent and spirit. 
 
 The note on which the present suit was brought, was 
 made payable to the payee or his order, and he ordered the 
 money to be paid to the plaintiff ; the plaintiff, therefore, 
 by the rules of equity, not only in Connecticut, but 
 * 322 in every country where equity is known, *is entitled to 
 
 receive the money in preference to the original payee. 
 What just reason can there then be, that the plaintiff 
 should not be. permitted to avail hvmself here of the forms 
 and remedies prescribed by our laws, and to sue directly 
 in his own name for the money, but should rather be compel- 
 led, agreeably to the usage of Connecticut, to use the name 
 of the original payee as a mere nominal plaintiff, or drama- 
 tis persona f If the defendant has any defence authorized 
 by the law of Connecticut, let him show it, and he will
 
 STATE OF NEW-YORK. 322 
 
 be heard in the one form of action as well as in the ALBANY. 
 other. Agreeably to the principle I. have laid down, I am 
 for allowing him every defence that he would have been 
 entitled to make in Connecticut, had the note been 'sued 
 there in the name of the original payee ; and as'long as this 
 can be done, I do not perceive any sufficient reason for 
 turning the plaintiff round to another suit. To permit in- 
 novations upon our forms of action, when not necessary, 
 may lead to inconvenience. 
 
 Judgment for the plaintiff. 
 
 (SUPREME COURT.) 
 
 Covenhoven against Seaman and others. 
 THIS was an action of debt on recognisance, in which If a recognisance 
 
 in a Iwmine re- 
 
 the defendants bound themselves to the plaintiff in 1OO/. piegiando be, 
 
 ~ , ~ ,...,. , that the slave 
 
 that a certain Jacob Jones, whom the plaintiff claimed and claimed, should 
 detained as his slave, and who had sued out his writ of {^^nd "person- 
 homine replegiando, should prove his liberty in the most *^" rt a an<j ar pr 
 proper and expedient way and means, and should personally '. cntc hls *" 
 appear in this court, and his suit in that behalf prosecute forfeited by the 
 
 appearance anw 
 IVlth effect. surrender of the 
 
 The plaintiff averred in his declaration, " that the said S o u claiming 
 
 ^f , j- , , . ... t it, ,. notwithstanding 
 
 Jacob did not prove his liberty, nor prosecute ms *suit in he be on SUC |, 
 that behalf with effect, but suffered judgment as in case ofJ er ac ~ 
 nonsuit, to be erf^red against him for not proceeding to * 323 
 
 trial." 
 
 The defendants by their plea stated, " that after the said 
 judgment of nonsuit, the said Jacob did appear in this court, 
 and then on the prayer of the plaintiff surrendered himself 
 to him, who accordingly accepted him, and that the de- 
 fendants have since paid to the plaintiff his costs of suit" 
 To this plea there was a general demurrer and joinder*
 
 323 CASES IN ERROR IN THE 
 
 ALBANY. Per Curiam, delivered by KENT, J. The defendants b? 
 this recognisance, and which appears to have been taken 
 agreeably to precedent, undertook for three things. 
 
 1st. That Jacob Jones should prove his liberty in the 
 most expedient way. 
 
 2d. That he should personally appear? in this court. 
 
 3d. That he should prosecute his suit in that behalf with 
 efeCt. 
 
 Instead of this it appears that Jacob Jones has not prov- 
 en his liberty, nor 'prosecuted his suit with effect, but has 
 suffered judgment to be entered against him as in the case 
 of nonsuit, and has, at the prayer of the plaintiff, surrender- 
 ed himself to him. 
 
 The condition of this recognisance has certainly not been 
 
 complied with ; a party submitting to a nonsuit, does not 
 
 | Canh. 519. prosecute a suit to effect ;f nor if the writ be abated for 
 
 any cause, will it save the recognisance, unless another writ 
 
 be issued out with due diligence. The case given in Fitzher- 
 
 $ j\- B. 68. a. bert\ is closely analogous to the present. " In a homine 
 
 replegiando, the plaintiff was bound in a recognisance in a 
 
 certain sum of money to the defendant's use that he would 
 
 * 324 sue him, *cum effectu ; and if the writ be abated for any 
 
 cause yet he ought to sue another writ for that taking, &c. 
 
 otherwise he shall forfeit his recognisance. H. 8. H. 4. 
 
 The only question that can be raised in this cause, is 
 whether the surrender to the plaintiff is a discharge from 
 the recognisance. I find no authority, nor any reason to 
 think so ; there were good inducements for the stipulations 
 in the recognisance that a suit should be prosecuted to ef- 
 fect, and the question of the freedom or servitude of Jacob 
 Jones judicially determined. It would either silence the 
 unjust pretensions of the plaintiff, and forever deliver the 
 man from bondage, or it would quiet him in the lawful pos- 
 session of his property. The surrender of Jones to the 
 plaintiff, and his acceptance of him, leaves the question stiH 
 undetermined.
 
 STATE OF NEW-YORK. 324 
 
 I am, therefore, of opinion, that the plea is bad, and that ALBANY 
 judgment be rendered for the plaintiff. v-^-^w. 
 
 Jtulah 
 
 Judgment for the plaintiff. 1{ J u , H) 
 
 (SUPREME COURT.) 
 Judah against Randal. 
 
 THIS was an action on a policy of insurance in the Under * policy 
 usual form, but free from average, on a chariot to be car- "Arc" itwiTave- 
 ried on deck. r: f c >" . but ia 
 
 which jettisons 
 
 On the voyage the box was thrown overboard in a storm lliake " e of the 
 
 perils insured a- 
 
 to lighten the vessel ; she afterwards arrived safe with the painst, if the box 
 
 . . r . , of the chariot b 
 
 remaining parts oi the chariot. thrown over- 
 
 It appeared the box is ordinarily estimated at two thirds iTsa' 
 of the price of the whole chariot. Verdict for the plaintiff, '^^ ln ** 
 
 as for a total loss of the chariot, subject to the opinion baiuioniug, to re- 
 
 cover as such, 
 
 of the court on the following question : *" Whether there h"gh the *= 
 
 i-iii^c be on deck, 
 
 hath been such a loss as 'to make the insurer liable ? # 325 
 
 if so, the verdict to stand ; if not, to be set aside, and the 
 defendant to take judgment as in case of nonsuit." 
 
 Per Curium, delivered by BENSON, J. The very state- 
 ment of the question implies it to be admitted by the parties, 
 and which is certainly the case, that the only question be- 
 tween them is, whether the loss is to be deemed a. total loss, 
 or only a partial or average loss of the chariot .' By the ex- 
 press terms of the policy, jettison was one of the perils 
 which the insurer took upon himself; but at the same time, 
 the insurance being also expressly free from average, the 
 jettison must not be a partial or average loss only, but must 
 amount to a total loss of the thing insured, so that the in- 
 quiry (and which is impliedly admitted in .the question sub- 
 mitted to the court as stated between the parties) is, had 
 the plaintiff a right to abandon to the ck-fai J:utt the remain- 
 
 3 M
 
 325 . CASES IN ERROR IN THE 
 
 ALI3AXY.. ing parts of the chariot which were saved, and sue as for a 
 
 V **" t0tal l SS ' ^ ' in i n * S t* 131 ^ e * lacl * 
 
 The part lost exceeded more than half the value of the 
 _J!!1'1_ whole chariot, the thing insured. The box being lost, the 
 chariot cannot, with any propriety, be considered so to have 
 arrived in specie as that it required to be repaired only to 
 have again become a whole chariot. With respect to a 
 chariot and every other wheel-carriage having a box, the 
 seats for the persons to be conveyed, wheels, the perch with 
 the axle-trees, springs and other parts affixed to it, and the 
 pole or shafts are sometimes collectively denominated the car- 
 riage-part, as distinguished from the box and its immediate 
 fixtures. If a wheel, or any other part of the carriage-part 
 should be lost, or be so Injured, as to be wholly unservicea- 
 ble, and therefore a new part become necessary in the place 
 of the part so lost or injured, the chariot would be said to 
 \nrepaired only ; but if the box should be lost, or be so in- 
 jured, it could not, with propriety, be said that the chariot 
 was repaired by a new box, it would be considered as a 
 new chariot, but that the old carnage-part was made to 
 serve. The case of a vessel, p"ut by the plaintiff's coun- 
 sel, is perfectly analogous and just. There may, as be- 
 tvrcea insured md insurer, be a total loss of the vessel, al- 
 though all the spars, sails and rigging may be saved, 
 new hull may be built and designedly of a form and bur- 
 then so as to be adapted to the spars, sails and rigging sa- 
 ved without any alteration in them, and be fitted out with 
 them accordingly. This would not restore the identity of 
 the vessel lost; as by the loss of the hull the vessel is lost ; 
 so by the loss of the box the chariot ceased to exist in 
 
 specie. , 
 
 Judgment for the plaintiff.
 
 I 
 
 STATE OF NEW- YORK. 32fr 
 
 I 
 
 (COURT OF ERRORS.) 
 
 i 
 
 Cuyler and others, Appellants, against Brack and 
 others, Respondents. 
 
 THE appellants' bill in the court of Chancery set forth : Vvlit-rc several 
 
 . paU'iiti-es bear. 
 
 . . 
 
 1st. A patent ot the 2d June, 1-688, to Ffl/z Rensselacr, in equal pn>p<>r- 
 ?G Cortlantd, Van Ness, and G. 7". Few Vcchten, for the pease f obtw* 
 
 i i 11 i rr / i incj :i patent, anil 
 
 land called Hosick; and, ,,^1^ recita , of 
 
 That no tenancy in common being expressed, the estate dtem^eKeskap- 
 was of course in joint-tenanci/. pears they mtcn- 
 
 <lc<l to p:ircliasc 
 
 The will of G. T. Van Vcchten of the 12th March, in common, they 
 
 willbe tak, 
 
 1703, 1704, devising his /arwz, &c. and all his residuary real nauts in common 
 
 , . f^f , \ ir i , nl not as joint- 
 
 estate, to Ins sons, Johannes ana wolcncrt, as tenants in com- tenants, ihoagh 
 
 man, in tf7 a/ parts. S^T^A 
 
 3d. The deaths of Pan Rensseber and C. T. ra 
 
 before severance of the jomt-tenanci/. inu-ntc.f pur- 
 
 J clinse, is a C'MI- 
 
 4th. A conve)-ance, afterwards, oi the 18th October^ 1705, vcyaBcewith no- 
 from Fa/j JV<?w and ftf/i Cortlandt, the surviving patentees, K rantcc takes 
 
 cv i 1. A* /^ T 1 rr rr i + i t r sulijcct to trnM* 
 
 to johanne.^ as the son or G. i. Van Vcckten, which, alter i mi ',ii c ,i !|S \\tii 
 reciting the patent, further recites, that the lands were pur- !V3cxprC! ei 5 ~ 
 chased from the Indians, and the patent obtained at the joint 
 and equal expense of the patentees; that it was their true 
 intent, purpose, and meaning, that they should hold as 
 , tenants in common, without any advantage by reason of 
 joint-tenancy or survivorship. That by the death of G. T. 
 Van Vechten -and Van Rensscktcr, before partition or any act 
 to destroy or cut off the right of survivorship by reason of 
 the joint-tenancy, according to such true intent, purpose 
 and meaning, Van Nes.i and Van Cortlandt, as survivors, 
 were, by such means, in the eye of the law, become sole 
 proprietors ; that they, having regard to the premises, and 
 for a nominal consideration in money, conveyed to Jofian- 
 nes, an equal undivided fourth part of the lands. 
 
 5th. A conveyance from Johannes, of the 50th October,
 
 S27 CASE IN ERROR IN THE 
 
 ALBANY. 1741, to Bradt, Brees and Van Beifren, his sons-in-laiv 7 
 
 ^^ T^i reciting a partition of part of the lands among the proprie- 
 
 bthers tors, on the 20th November, 1732, when lots No. 2. 10, 11. 
 
 V. 
 
 Bradt and 18. 20. and 21. fell to the share of Johannes, and lot No. 
 
 A -' 7. fell to the share of J. Van Renssclaer, and conveying to 
 
 them, in consideration of thirty pounds, all such right, es- 
 tate, title, interest and demand, whatsoever, as he had, or 
 ought *to have, in those lots, and the undivided land ; and 
 that this conveyance was either voluntary, or if for vaiua' 
 ble consideration, then with notice of the right or claim of 
 Volchert. 
 
 6th. A deduction of the title of the appellants as the re- 
 presentatives of Volchert; and, 
 
 7th. That the respondents hold as volunteers under Bradt 
 and Brees. 
 
 The scope of the bill then, was, that the appellants might 
 be let in for a moiety of the lands held by the respondents 
 by title derived from Bradt and Brees, and to have an ac- 
 count of the rents and profits. 
 
 To this bill the respondents demurred, and the demur- 
 rer being allowed, there was a decree of dismissal, but the 
 decree being reversed on appeal, and the cause remanded 
 to the court of Chancery, the respondents put in their an- 
 swer, and proofs were taken. 
 
 The only material question, as to facts contested between 
 the parties, was, whether there was sufficient evidence to 
 find that the conveyance from Johannes to Bradt, Brees 
 and Van Beuren, was either voluntary, or if it was for va- 
 luable consid< ration, then that it was with notice of the 
 right of Volchert. 
 
 The proof* as to these facts, were, 
 
 1st. A partition- deed of the farm of G. T. Van Vechtcn^ 
 between Johannes and Volchert, of the 9th of June, 1707, 
 reciting the svill of \hs\rfather. 
 
 2d. A mortgage from Johannes to Coyeman, of the 2d 
 September, 1723, reciting the deed from Volchert for the
 
 STATE OF NEW-YORK. 
 
 328 
 
 parcels, which, on the partition, fell to the share of Johan- 
 nes, and which then constituted his farm. 
 
 3d. A conveyance from Van Beuren to J. Van Rens- 
 selaer of the 22d May, 1749, reciting a conveyance *from 
 Johannes to Brees, Bradt and Van Beuren, of the 12th Au- 
 gust, 1738, for all his farm. 
 
 4th. That on the 2d June, 1740, Brees, Bradt, and Van 
 Beuren paid 8/. Os. 'id. for Johannes to one Fresneau. 
 
 5th. That on the 2'- d July, 1744. 5 Bradt, Brees, and 
 Van Beuren became bound with him to one Dow, for 521. 
 8s. Qd. and that they also became bound with him to one 
 Staats in about 300/. but the time is not mentioned. 
 
 6th. That Van Beuren, in 1748, sold his share of the 
 lands under the conveyance from Johannes, of the 30th 
 October, 1741, to one Collins, for 20/. 
 
 7th. The deposition of Bleekcr, examined as a witness. 
 He tetsified, that he drew the deed from Johannes to Bradt, 
 Brees and Van Beuren, of the 30th October, 1741; that 
 previous to the execution of it, he showed it to Volchert, 
 who directed his son to go to the witness and tell Johannc.s 
 not to execute it ; that the son told Johannes he was di- 
 rected by his father to desire him not to execute it ; that 
 Johannes immediately, thereupon, left the room, and after 
 an absence of about fifteen minutes, returned and said, 
 what s/W//677i? > / have already signed to Dow and Jan- 
 sen; that Bradt, Brees and Van Beuren were present, and 
 Brees told him that he did not sign away any more than he 
 had, and then Johannes signed it. 
 
 On the hearing, on the bill, answer and proofs, the Chan- 
 cellor again decreed the bill to be dismissed, and thus as- 
 sigined his reasons. 
 
 Mr. President. I dismissed the appellants' bill, 
 1. Because the crown having granted to the patentees 
 jointly, no intention of the patentees to hold *in common 
 eon vary- the nature of the estate, either at law or equity, 
 
 ALBANY. 
 
 Urmlt. and 
 others. 
 
 * 329 
 
 * 330
 
 330 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Cuyler and 
 others 
 
 v 
 
 Bradt and 
 others. 
 
 * 331 
 
 from that created according to the intent of the crown, ex- 
 pressed in the grant. 
 
 There is no intent that it should be otherwise expressed 
 in the grant. The estate was in joint-tenancy. Their in- 
 tention to hold as tenants in common, the estate which pass- 
 ed to them by the grant, cannot sever the estate that was in 
 joint-tenancy. 
 
 2. Because the patentees paid equal proportions of the 
 purchase-money to the Indiana. This always makes a joint- 
 tenancy in equity, where the estate is joint in law. The 
 reason of this is founded on what is laid down in some of 
 the books ; namely, that it seems to be the doctrine of the 
 court of equity, that where two or more purchase land, and 
 advance the money in equal proportions, and take a convey- 
 ance to them and their heirs, this is a joint-tenancy ; that 
 is, a purchase of them jointly, of the chance of survivor- 
 ship, which may happen to one as well as the other ; but 
 where the proportions of the money are not equal, and this 
 appears in the deed itself, this makes them in the nature of 
 partners ; and, however the legal estate may survive, yet 
 the survivor shall be considered but as trustee for the 
 others, in proportion to the sums advanced by each of 
 them. 
 
 It has already been intimated, that the patentees' having 
 contributed equally in the expense of acquiring the land, 
 was sufficient for the implication of a compact or trust be- 
 tween them, that no advantage was to be taken by survivor- 
 ship, and, consequently, that the fitness of the rule here 
 cited, might be questioned. 
 
 This is not only altogether a refinement, but it is also evi- 
 dently erroneous ; because, in order to equality *in chance 
 of survivorship, there ought to be equality of age, as much 
 as equality of contribution: to this may be added, that the 
 correctness of a court of equity would require, that the 
 presumption that persons ever act on a calculation of chance 
 or luck, ought to be considered as ra her odious, and, 
 therefore, never to be assumed as a ground of decision. 
 4
 
 STATE OF NEW-YORK. 
 
 3. Because, if the supposed trust is founded on any 
 agreement between the original patentees, their heirv 
 should have been parties to the suit, since they might, pro- 
 bably, have been called to show, that the conveyance to 
 the eldest son, was conformable to the very terms of the 
 agreement. 
 
 4. Because the legal estate being in the defendants, and 
 no express trust appearing, the complainants should show 
 such an implied trust as is clearly out of the statute of 
 frauds. 
 
 5. Because the present defendants are bona fide pur* 
 chasers, without notice of the claim of the complainants, 
 Blether's testimony being inconclusive, as to the point of 
 notice, particularly after so great a iapae of time, and the 
 death of all the parties. 
 
 6. Because, there being no evidence of fraud, or of the 
 commencement of a suit by Volchert Van Vechten as set 
 forth in the bill, and on which alone the court of appeals 
 overruled the demurrer, and the estate having been held, 
 for upwards of eighty years, by the purchasers under Jo- 
 hannes, without any suit or legal demand upon them ; the 
 court will not, after such a lapse of time, suffer them to 
 be dispossessed by an implied trust, particularly as the 
 estate has, probably, with many others in this country, ^in- 
 creased one hundred fold by the improvements thereon 
 within that period. 
 
 Per Curiam, delivered by BENSON, J. As to the ques- 
 tion of fact above stated, it is not requisite to say more, 
 than that the evidence at least preponderates in favour of 
 the supposition, that the conveyance of the 30th October, 
 1741, although there might have been some pecuniary con- 
 federation for it, as from Brees, Bradt and Van Beuren, 
 yet, that the greater inducement or consideration as from 
 Johannes, was relationship. This rendered it more a gift 
 than a sale. It appears, that Brees, Bradt and Van Bcuren 
 then knew of the will of Q. T. Van Vechten, and of the con- 
 
 ALBANY* 
 
 Cuylcr and 
 others 
 
 r. 
 Bradt and 
 
 i thers. 
 
 332
 
 332 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Cuyler and 
 
 others. 
 
 v. 
 
 BracH and 
 others 
 
 * 333 
 
 veyance from the surviving patentees to Johannes, so that 
 the conveyance from Johannes to Bradt, Brees and Van 
 Beuren, was not only, voluntary, but they took with a notice 
 of the right of Voichert, and either the one or the other is 
 sufficient for the appellants. 
 
 Although the evidence is mentioned as preponderating 
 only, the inference is not, therefore, intended to be, that if 
 it was necessary, it could not be shown to be perfectly 
 satisfactory. 
 
 As to the question of law, or right between the parties, 
 it is to be observed, that a use is a right in one person, to 
 have the use or profits or beneficial interest of land, and 
 another person to have the right ; that is, to be the legal, 
 or formal possessor or tenant of it. These uses were bor- 
 rowed from the civil law, and introduced at first by the 
 clergy, to evade the statutes of mortmain by procuring a 
 natural person to hold the land, but to the use of the cor- 
 porate or politic persons, the monastery, or religious house. 
 This ^contrivance was afterwards used a.? a means to enable 
 persons to devise, and also to prevent forfeitures by cestui 
 que use. 
 
 The land itself could not be devised, but the use might ; 
 the land was forfeitable for crimes, but the use was not ; 
 the only remedy for cestui que use, the person having the 
 right to the use, against his feoffee to use, the person hold- 
 ing the land, if he refused to let him have the use of the 
 land, was in a court of equity. Afterwards, the statute 
 of uses, by annexing the possession to the uses, gave the 
 cestui qiie me a complete remedy at law. This produced a 
 distinction between executed and executory uses, the former 
 being where the possession is by force of the statute, trans- 
 ferred to the cestui que use, so that the feoffee to the use is 
 only, as it were, to forbear or be passive, and the use will 
 execute itself in the cestui que use ; the latter is where an 
 act is necessary by the feoffee to the use, to execute the 
 use, as to convey over the land, or to receive and pay over 
 the profits, &c. and since the statute, executory uses have
 
 STATE OF NEW-YORK. 333 
 
 been more generally distinguished by the appellation of ALBANY. 
 
 trusts, which hath produced different appellations for the v^-vx./ 
 
 parties ; the feoffee to the use is called the trustee ; the ces- "whew"* 
 tulque use is called the cestiii que trust. The execution of 
 
 t I3ru(k and 
 
 trusts can be still compelled in equity only, and are there others, 
 subject to the like rules with uses at law ; they are assigna- 
 ble ; they are transmissible by descent and devise, and, 
 which is peculiarly to be attended to in the present case, the 
 possession of the trustee is the possession of the ccstui quc 
 trust, and the rights of the latter may be barred by the sta- 
 tute of limitations, in like manner as *uses or titles at law. * 334, 
 But trusts are implied or expressed ; implied trusts are 
 such as arise from the case, which is, therefore, the fact, 
 and the trust is the right arising from that fact ; express 
 trusts not being to be deduced from the case itself, must 
 be declared. No particular form, however, is requisite in 
 declaring them, and they may be declared at any time. Be- 
 fore the statute of frauds and perjuries, the evidence of the 
 declaration might have been by parol; it must now be 
 by writing. Purchasers for a valuable consideration, from 
 a trustee, do not purchase at their peril against the trust, 
 and, therefore, they will not be adjudged to have purcha- 
 sed, subject to the trust, unless it is proved they had notice 
 of it. 
 
 To apply what is here premised to the present case ; it 
 might be insisted, that G. T. Van Vechtcn having contributed 
 an equal fourth part of the expense in acquiring the land, 
 that fact, therefore, was in itself sufficient to imply an exist- 
 ing trust in favour of him; that he was to have an equal 
 fourth part of the land in severally, and that a court of 
 equity would, accordingly, in case of his death, have com- 
 pelled the surviving patentee to have conveyed a fourth part 
 to his representatives ; by the conveyance, however, from 
 the surviving patentee to Johannes, the necessity of recur- 
 ring to mere implication, for the trust is saved, the recital 
 in that conveyance being a sufficient declaration in evidence, 
 that such trust was expressed between the patentees, and
 
 334 
 
 ALBANY. 
 
 Cuyler and 
 others 
 
 v. 
 
 Bradt and 
 others. 
 
 335 
 
 I 
 
 CASES IN ERROR IN THE 
 
 coeval with their intention, to acquire the land ; it was 
 their true intent, purpose, and meaning, that they should 
 hold as tenants in common, without any advantage by rea- 
 son of joint-tenancy or survivorship. *The trust, therefore, 
 being an interest devisable, a moiety of the fourth of G. T. 
 Van Vechten passed by his will to Volchert, and the convey- 
 ance from the surviving patentees is to be deemed the 
 act by them in the execution of the trusts ; so that Johan- 
 nes, as to a moiety of the lands thereby conveyed to hirn^ 
 look by implication or construction of law, in trust for 
 Volchert, and this hath been transmitted to the appellants, 
 his representatives. Johannes not having done any act in 
 breach of the trust, or adverse to it, so as to be considered 
 as equivalent to a disseisin at law, until the conveyance of 
 the 30th October, 1741, the possession, therefore, of Jo- 
 hannes to that time, being to be deemed the possession of 
 Volchert, which being within sixty years, when the appel- 
 lants filed their bill ; and that conveyance being voluntary, 
 or they having notice at the time, of the right of Vol- 
 chert, the appellants are, therefore, entitled to a decree for 
 a moiety of the lands. Laches are, nevertheless, so to be 
 imputed to them, that it would not be proper for a court of 
 equity to aid them to recover the rents or profits. 
 
 It will suffice to say, as a general answer to the reasons 
 not specifically replied to, that it is obviously to be collected 
 from what has already been suggested, that with respect to 
 the allegation in the bill, of a suit by Volchert against Jo- 
 hannes for the recovery of the land, it not being proved, no 
 notice was taken of it on the hearing of this appeal, either 
 by the court or the counsel. 
 
 DECREE. On hearing counsel on both sides, on the ap_ 
 peal, in this cause, this court doth adjudge and decree, that 
 the decree of the said court of chancery *in this cause be re_ 
 versed ; and instead thereof, this court doth further adjudge 
 -and decree, that the respondents do, by sufficient convey- 
 ances, convey to the appellants severally in fee-simple, ac-
 
 STATE OF NEW-YORK. 
 
 336 
 
 Cuylei- awl 
 others 
 
 v. 
 
 Brath aiul 
 others. 
 
 cording to their respective shares or interest therein, as ALBANY. 
 they have in their bill of complaint set forth, their title to 
 the same, under Vokhert Van Vechten, one of the residuary 
 devisees, named in the will of Garrit T. Van Vechten, also 
 in the said bill set forth, an equal undivided moiety of such 
 of the lands, conveyed by Johannes Van Vechten, the other 
 residuary devisee, named in the said will, to Bernardus Bradt, 
 Hendrick Brees, and Barent Van Beuren, by conveyance bear- 
 ing date the 30th day of October , 1741, in the said bill men- 
 tioned, and held by the said respondents, by title derived 
 from the said Bernardus Bradt and Hendrick Brees, or either 
 of them, and that the said bill, as far forth as the same prays 
 that the respondents may account for the rents or profits of 
 the said lands, be dismissed. And, except as to the costs 
 intended in the decree of this court on the former appeal 
 between the said parties, that they respectively pay their 
 own costs on this appeal, and which have hitherto accrued 
 in the said court of chancery, and that, as to all such other 
 costs as shall hereafter accrue in the said court of chancery, 
 the respondents pay to the appellants their costs "m that be- 
 half to be taxed. And it is ordered, that the said cause be 
 remanded to the said court of chancery, and that all neces- 
 sary orders and directions be there given for carrying this 
 de.cree into effect. 
 
 Decree of reversal. 
 
 ^(SUPREME COURT.) 
 Jackson, ex dem. Smith, against Hammond. 
 
 ISRAEL SMITH, being seised in fee of the premises 
 in question, by his will of the 21st July, 1774, devised 
 them " to the trustees of the town of Brookhaven, and their 
 successors for ever, upon trust and confidence, and to the- 
 intent and purpose that they did, and should, after his de- 
 
 33r 
 
 Our s; 
 
 1784, enabling 
 churches, & 1 '- 
 to incorporate 
 thcmselvci, doc.< 
 not enable them 
 to take lauds l>y 
 a devise.
 
 337 
 
 CASES IN ERROR IN THE 
 
 ALBANY. 
 
 Jackson 
 
 v. 
 Hammond. 
 
 * 338 
 
 cease, rent and hire the same to any person at their vvili, 
 and pay the rents and hires thereof, after the expiration of 
 the time, during which the same should be legally charged 
 and encumbered with the lawful maintenance and dower of 
 his wife, into the hands of the regular minister and other 
 ruling officers for the time being of the Baptist Church of 
 
 Christ at ." The testator died on the 1st November, 
 
 1 780, and his widow about ten years thereafter. 
 
 The trustees of the Baptist Church had, from the death 
 of the widow, received the rents and profits of the premi- 
 ses, and the defendant, at the time of the commencement of 
 the suit, held the premises under them. The lessor of the 
 plaintiff was heir to the testator. The trustees of the town 
 of Brookhaven were, at the time of making the will, and 
 then were a corporation capable to take and hold lands. 
 The question was, " is the plaintiff entitled to recover . ? " 
 
 Per Curiam, delivered by BENSON, J. By the law of En- 
 gland, and which, as such, became the law of the colonies, 
 lands were devisable in virtue only of the statute of Hen. 
 VIII. commonly known as the statute of wills. Special 
 customs were exceptions to the common or general law ; 
 but, being local, they formed no part of our law, and the 
 right or *power to devise, granted by the statute, being 
 expressly limited or restricted from extending to a right or 
 power to devise to corporations, the devise in the will ot 
 Israel Smith to the trustees of Brookhaven, ought, there- 
 fore, to be adjudged void ; so, that on his death the lands 
 descended to the lessor of the plaintiff as his heir at law. 
 This must be admitted, unless, as is contended for on the 
 part of the defendant, by our statute of the 6th April ^ 
 1784, enabling churches, &c. to incorporate themselves, 
 they are constructively, with respect to lands possessed or 
 held by them, at the time of their incorporation, made capa- 
 ble to take by devise; and that, to that end, the incorpora- 
 tion is to relate to the death of the testator, so as to over- 
 reach the rights of all others claiming under him.
 
 STATE OF NEW-YORK. 
 
 333 
 
 It must be acknowledged, that if the words devised and 
 devise, in the 4th section, had either been wholly omitted, or 
 if in the sentence in which they are found, they had been 
 made expressly to refer only to goods or chattels, there 
 would not then have been a possible ground, for SLCO ttruct- 
 ive capacity in these corporations to take and hold lands also 
 by devise ; the question, therefore, between the parties 
 may be more precisely stated to be, whether the construc- 
 tion contended for is necessary, in order to satisfy these 
 words, or to give them their requisite due sense and mean- 
 ing, considered as predicates or relatives, and the words 
 lands, tenements, hereditaments, goods and chattels, consider- 
 ed as subjects or antecedents. 
 
 The rule reddenda sunt singula singulis is obviously ap- 
 plicable in this case, and by a transposition, equally obvi- 
 ous, the sentence may be made to read " all temporalities, 
 whether the same consist of lands, tenements, heredita- 
 ments, goods or chattels, given or ^granted, or of goods or 
 chattels devised" &c. whereby a perfect, although a less 
 extensive sense and meaning, will be given to the word de- 
 vised, and its concomitant devise, and the sentence will be 
 rendered consistent both with itself and with law, and es- 
 pecially with the concluding sentence in the section, " that 
 the trustees shall hold the church and lands thereunto be- 
 longing, by whatsoever name or person the same were pur- 
 chased or had, or to them given or granted, in as full a 
 manner as if they had been legally incorporated, and made 
 capable to take, receive, purchase, have, hold, use and enjoy 
 the same" 
 
 The only manner in which, had they been incorporated, 
 they were capable of taking, &c. being by -gift or grant, 
 and not by devise, it is, therefore, not unworthy of notice, 
 that in the latter sentence the word devise is omitted, and 
 the words, given or granted only used, to which may be 
 added, that if the construction contended for by the de- 
 fendant is to obtain, then this consequence will follow, that 
 the legislature must be supposed to have intended to give to 
 
 * 339
 
 339 CASES IN ERROR IN THE 
 
 ALBANY. a church a capacity to hold lands taken or acquired as it were 
 before their incorporation, and refuse to them a capacity to 
 take and consequently to hold lands acquired after their in- 
 
 ___ _____ corporation, and without a reason for the discrimination ; 
 
 for, whether the acquisition was before or after tho incor- 
 poration, or whether it was by gift or grant or by devise, 
 was immaterial, as long as the value was within the sum 
 limited by the statute. As to the argument deduced from 
 the expression in the statute, " although such gift, grant or 
 devise may not have strictly been agreeable to the rigid 
 rules of law," and that the restriction or limitation in the 
 statute of wills from devising to corporations *is to be con- 
 
 * 34 sidered in the nature of a strict or rigid rule of law, and, 
 
 therefore intended to be dispensed with by these provisional 
 expressions, it would be sufficient to observe, that it is only 
 colourable at best. 
 
 I will, however, in answer, state, that if the will in the 
 present instance had, after the possession and incorporation 
 of the Baptist Church, the cestui que trust in it, been disco- 
 vered to have been attested by only two witnesses, the heir 
 at law would be entitled to recover the lands ; this I assume, 
 as unnecessary to be demonstrated, and, therefore, if the 
 expressions cited were not competent to cure a mere imper- 
 fection in the devise, surely they must be less so wholly to 
 create a devise ; if they must yield to the rule, and of 
 
 /' questionable utility in the statute of frauds, much more 
 
 must they yield to the rule confessedly highly provident in 
 the statute of wills. I will only add, that supposing the 
 statute of Hen. VIII. never to have passed, and that we 
 had not had, as was the fact, any statute of wills of our 
 own, till the present one of 1787, would the incorporating 
 statute now under consideration, in such case, have been 
 deemed impliedly to alter the common law, so far as to give 
 a right to devise to a church, congregation, or other reli- 
 gious society only? if not, and the statute of Hen. VIII. 
 having passed, and with the express restriction or limitation 
 already mentioned, should we now, therefore, decide for
 
 STATE OF NEW- YORK. 
 
 the defendant, will it not follow from the decision, that 
 terms less explicit and less forcible will suffice for an im- 
 plied enlargement or extension of an express restriction or 
 limitation in a grant of a right or power, than for an im- 
 plied right or power, no otherwise to be considered as pro- 
 hibited, except as *it hath never been positively granted? 
 Where shall we find the rule or principle for the difference 
 in this respect in the two cases ? My opinion is, that the 
 words devised and devise in the statute, refer only to good? 
 and chattels, and that to make them refer also to lands, tene. 
 ments, and hereditaments, would be a construction too ex- 
 tensive to be warranted by law, and consequently that there 
 must be judgment for the plaintiff. 
 
 Judgment for the plaintiff accordingly. 
 
 340 
 
 * 341 
 
 (SUPREME COURT.) 
 Browne and others against Robinson and Hartshorne. 
 
 ON a motion, by the defendant, to set aside the verdict Where goods 
 
 are sold by a 
 
 in this cause, Mr. Justice LEWIS, before whom it was known factor 
 tried at the October term, 1799, made the following report: set-off cannot'be 
 *' This was an action of assumpsit for iron sold and de- i^m by^'t'he 
 livered by the plaintiffs to the defendants. Plea, the general ftcb't'^hie' from 
 issue. At the trial, the plaintiffs produced, as a witness, owii^iu'if 'i" 
 
 Nenn/ B. Franklin, late a clerk of Nicholas Cooke, formerly s 00 * 1 ' he actual- 
 ly those <>i 
 
 of the citv of New-Tork, merchant, deceased, who proved, ' principal. 
 
 .... ' . ' though the fac- 
 
 that the iron mentioned in the declaration, was consigned tor do carry 
 by the plaintiffs to Cooke, to be sold by him, as their factor. him*lf,ao4 no- 
 That on or about the 7th day of November, 1796, as nearly {&"&! rfjj 
 as the witness could recollect, Cooke sold the iron to the res P ect ;v- 
 
 ownership ol 
 
 defendants for the sum of 1,080 dollars, pavaMe at seventy the goods. < 
 
 J -A s;de h\ to- 
 days ; but at the time of such sale, no notice \vas given to known factor t 
 
 ft house, tin- 
 principal mny immcdifttf'y maintain .111 action :;int \\-. 
 
 i he risk oF ilu-ir jirii.
 
 341 CASES IN ERROR IN THE 
 
 ALBANY. the defendants (nor was any evidence offered, to show 
 
 v -" < ~^^^ *that they knew) that the sale was made by Cooke, as fac- 
 
 othm* 11 tor or agent, for the plaintiffs, or any other persons. He 
 
 Robinson and testified, however, that it was generally known that Cooke 
 
 Hartshome. was f actor to t h e plaintiffs ; but that he then transacted 
 
 * 342 business as well on his own account, as upon commission. 
 
 " That after the delivery of the iron, and before the . 
 death of Cooke, the witness, as his clerk, called upon the 
 defendants with a bill of parcels for the same, and request- 
 ed their note for the amount, which they refused to give, 
 alleging, that they held a note given to them by Cooke, for 
 nearly the same amount, which would fall due about the 
 same time, and that they intended to set it off against the 
 amount of the iron. They at the same time showed the 
 note to the witness. 
 
 41 That Cooke was, at the time of the sale, and until, and 
 at his death, indebted to the plaintiffs in the sum of 20,OOO 
 dollars and upwards. That after his death, and before the 
 expiration of the credit of seventy days, one of the plain- 
 tiffs called with the witness, upon the defendants, and in- 
 formed them that the iron was sold by Cooke, as factor of 
 the plaintiffs, and, at the same time, gave notice, that they 
 should expect payment of the same, upon which, one of the 
 defendants answered to the plaintiff, that he did not know 
 him, and would not pay him. It also appeared, that one 
 of the plaintiffs, after the above conversation, became the 
 administrator of Cooke's estate.. It was also proved, that it 
 is the custom of Ne^v-York for factors to sell on credit at 
 the risk of the principal, and that it was the uniform usage 
 in Cooke's store, to sell agreeably to such custom, and 
 
 *that in this case, the goods were sold at the plaintiffs' risk 
 343 , . , ,-pi i ' 
 
 upon the common commission in such cases. 1 ne plain 
 
 tiffs there rested their cause, and the defendants moved 
 for a nonsuit, upon the ground that no offer of indemnity 
 against the claims of Cooke, or his representatives, had 
 been made by the plaintiffs to the defendants, which motion 
 was overruled by the judge.
 
 STATE OF NEW-YORK. 
 
 343 
 
 u On the part of the defendants, evidence was then offer- ALBANY, 
 ed to be produced, that at the time of the sale of the said 
 goods, and notice to pay the plaintiffs, they held Cooke's 
 note, dated the 22d July, 1796, for 1,080 dollars and 25 Robinson and 
 
 J y Hurtshorne. 
 
 cents, payable in six months after the date, and that they _ 
 had since held, and still did hold it, which note was in- 
 tended to be offered as payment. This evidence was ob- 
 jected to by the counsel for the plaintiffs, as inadmissible 
 under the present issue, and that it would be equally so, if 
 a notice had been annexed to the plea. Whereupon the 
 judge rejected that evidence, and directed the jury, that the 
 law was with the plaintiffs, and that the note otCooke could 
 not be set off under this issue. Upon which, the jury 
 found a verdict for the plaintiffs for the price of the iron, 
 with interest, from the expiration of the seventy days 
 credit." 
 
 Per Curiam. Where goods are purchased from a factor 
 scienter, with intent by the purchaser, to set off against the 
 purchase, a demand which he may have against the factor, 
 the principal may, in such case, and as on a sale made im- 
 mediately by himself, have a suit against the purchaser, at 
 any time before payment to the factor, every purchase so 
 made with *intent solely thereby to obtain payment or secu- 
 rity from the factor being, as against the principal, fraudu- 
 lent. 
 
 * 844 
 
 Motion refused. 
 
 3 o
 
 CASES IN ERROR IN THE 
 
 (COURT OF ERRORS.) 
 
 William Laight and others, against John Morgan 
 and others. 
 
 Where a bill THE substance and points in this case are so well stated 
 "ttion^of Xi wit- m the decision of the court, that it is unnecessary to do 
 nesses de bene more than gi ve the opinion on which it was pronounced. 
 
 esse, on account 
 of age, &c. an 
 affidavit of the 
 
 facts on which KENT, J. The bill of complaint in the cause appears to 
 
 the application 111 T 
 
 is founded, is ne- have had three objects, viz. 
 
 bHUiPhave a ti- To obtain a discovery of facts from the defendants; to 
 and e fi Wl quiet perpetuate testimony ; and to obtain specific relief, 
 whenever a b?u Upon the demurrer to the whole bill, there were seven 
 seeks to transfer causes of demurrer assigned. The three last causes were 
 
 a matter cogni- 
 sable by law to assigned in the same words as in the similar case of Lc 
 
 chancery,an affi- . . 
 
 davit of thefacts, Roy and others v. Service and others^ which was betore the 
 required, should court the last year, and by the decision then, are to be 
 ires an deemed as having been overruled. The fourth cause of de- 
 n to Tnurrer was abandoned by the counsel for the respondents 
 others, a demur- UDOn the argument as untenable. If the third cause be not 
 
 rer to the whole 
 
 for want of that equallv so, it is, perhaps, not material in the present case, 
 affidavit is bad. . v . 
 
 since, as I shall presently show, the decision or this cause 
 
 finally depends upon this single point, viz. if any part of 
 the bill requires an answer, is a demurrer to the whole bill 
 good? 
 
 I confine myself, therefore, to the consideration of these 
 two questions, as arising out of the two first causes of de- 
 murrer. 
 
 # 345 #1. To what objects, if any, in the bill, was an affidavit 
 
 requisite. 
 
 2. If not for every object, is a demurrer to the whole 
 bill, for the want of such affidavit, maintainable ? 
 
 1. The bill alleges the loss of papers material to the com- 
 plainant's title, and seeks a discovery concerning them from
 
 STATE OF NEW-YORK. 
 
 345 
 
 the defendants. This is a matter within the ordinary and 
 proper jurisdiction of a court of equity, and so far it is 
 conceded that the bill did not require an affidavit. The bill 
 further seeks for the examination de bcne esse of witnesses, 
 who are alleged to be aged or infirm, or resident abroad, and 
 for this purpose, I conceive that an affidavit was requisite, 
 by the practice of the court, stating generally the age, in- 
 firmity, and place of residence of the witnesses, and as no 
 affidavit of this kind was put in during any stage of the 
 cause, a demurrer to that part of the bill might have been 
 good. The bill finally prays to have the title of the com- 
 plainants to two tracts of land established, and quiet pos- 
 session given to them. This is a matter properly of legal ju- 
 risdiction, and relievable by the courts of common law; and, 
 for this reason, I deem an affidavit to the truth of the ma- 
 terial facts stated in the bill, to have been requisite. 
 
 It appears to me to be an established, as well as a reason- 
 able and fit rule, that whenever a bill seeks to transfer to 
 chancery, a question properly cognisable by the courts of 
 law, the facts rendering such transfer proper, must be veri- 
 fied by oath ; so that a suitor shall not, upon mere sugges- 
 tion or pretext, break in *upon and disturb the settled boun- 
 daries of the courts of justice. 
 
 As, therefore, the bill in respect to one object, the dis- 
 covery, did not require an affidavit, and in respect to the 
 other two objects, to wit, the examination of witnesses, and 
 the relief, did require one, this leads me to consider, 
 
 2. The second question, viz. whether a demurrer to 
 the whole bill, for the want of suth affidavit, be good. 
 
 It is an established and convenient rule of pleading, in 
 chancery, that you may meet a complainant's bill by several 
 modes of defence. You may demur to one part, answer 
 to another, plead to a third, and disclaim to a fourth part 
 of the bill. If, therefore, a bill seeks a discovery of a 
 matter which is proper, and likewise seeks discovery of 
 other matter, which is not proper ; as, for instance, matter 
 whjch would charge the defendant with a crime, the de 
 
 ALBANY. 
 
 Lai glit and 
 
 others 
 
 v. 
 Morgan and 
 
 ollicrs. 
 
 * 346
 
 346 
 
 ALBANY. 
 
 Laight and 
 
 others 
 
 v. 
 Morgan and 
 
 others. 
 
 CASES IN ERROR IN THE 
 
 fendant must answer to the proper, and may demur to the 
 improper questions put to him, or he may answer to the 
 proper questions, taking no notice of the residue. So, if 
 a bill, as in the present case, seeks for a discovery, and 
 also for relief, consequential to such discovery, the bill be- 
 ing good for the one object, without affidavit, and not for 
 the other, the defendant ought to meet the sound part of 
 the bill by an answer, and be left to his own option whe- 
 ther he will demur or not to the other part. 
 
 I do not find any authoritative rule declaring that if a bill 
 be bad in part only, and good in other parts, the whole bill 
 thereby becomes vitiated, and will be dismissed on a gene- 
 ral demurrer. The settled rule is most assuredly other- 
 wise, and a bill, combining ^discovery and relief, without 
 affidavit, though liable to demurrer, as to the relief sought, 
 shall, nevertheless, be retained and supported for the pur- 
 pose of discovery. 
 
 A different rule would be very inconvenient and unne- 
 cessarily grievous. To support a demurrer to a whole bill, 
 when part of it, had that part been separate and distinct, 
 would have required an answer, is to send a party back to 
 travel the same ground over again, with much expense and 
 loss of time, and to no useful purpose. He must file the 
 same bill anew, with the omission only of the exceptionable 
 prayers, and repeat the former process for bringing the de- 
 fendant into court, who, when he arrives, will be in no 
 better situation than he was before ; since the same answer 
 which might have been sufficient, and the same consequen- 
 ces which the defendant might have commanded then, must 
 
 follow now. 
 
 I am, accordingly, of opinion, that the demurrer which, 
 instead of being confined to the exceptionable parts of the 
 bill, went to the whole bill, ought to have been overruled, 
 2nd, consequently, that the decree of the court of chancery, 
 allowing the demurrer of the respondents, and dismissing 
 the bill of the appellants, must be reversed. 
 
 Judgment of reversal unanimously.
 
 STATE OF NEW-YORK. 
 
 N. B. LANSING, Ch. J. though he coincided in the 
 judgment of the court, said, that a bill for discover)- and 
 relief, without affidavit, was a nullity , and a general demur- 
 rer to the -whole bill good. 
 
 347 
 
 ALBANY. 
 
 olhers 
 Morgan and 
 
 others 
 
 *Ludlow against Dale. 
 
 The opinion of Mr. Justice KENT, in- this cause, having 
 been referred to in his argument on the co?iclusiveness of 
 foreign sentences,^ is given now, as it was not till the pre- 
 ceding sheet was worked off, that it came to the hands of 
 the compiler. 
 
 THIS was an action on a policy of insurance on the 
 schooner Paragon and her cargo, from Aux Cayes, or any 
 other port in Hispaniola, to the United States, and war- 
 ranted American. The insurance was effected for Moses 
 Myers, of Virginia, and the vessel was captured by a Bri- 
 tish frigate on her return from St. Domingo, laden with the 
 produce of that island, and was carried into Jamaica ; and 
 by the vice-admiralty court of that island was condemned 
 as good and lawful prize. 
 
 Two questions have arisen on this case. 
 
 1. Whether the sentence of the admiralty concludes all 
 further inquiry respecting the neutrality of the property. 
 
 2. If it does not, whether the testimony offered ap- 
 pears to warrant the sentence of condemnation at Jamaica. 
 
 When this cause was argued at the last July term, I ob- 
 served, with some surprise, that the counsel on each side, 
 seemed in a great degree to abandon the first point, and 
 taking it for granted, that the question on the warranty was 
 still open, they entered fully, and, I think, with much 
 force and ability, into a discussion of the several matters 
 of fact, on which the proceedings in the admiralty must 
 have been founded. I shall, however, confine myself to 
 
 348 
 
 f _ 259-
 
 &8 CASES IN ERROR IN THE 
 
 ALBAN 1 /. the consideration of the first question, because, in my opi- 
 nion, that alone governs the cause. If the sentence *of 
 condemnation by a foreign court of admiralty, be conclu- 
 sive, over the question of neutral property, it is unnec.es- 
 
 # 349 sary to examine any further. If it be not conclusive, and 
 
 the question is still open for discussion, it is then a ques- 
 tion of fact to be submitted to a jury, and we have nothing 
 to do with it, other than to send it back to the proper tribu- 
 nal. 
 
 It is a clear and settled principle of law, that the sentence 
 
 2 Ersk. 734. r r ...... 
 
 2 AYr. 733. s ot a court or competent jurisdiction is, as to the direct 
 
 Vincr, 95. 1.33. P int under decision, conclusive upon all other courts of 
 
 1078 12 ^ vfid ^ ie state > w ' ltn i n whose limits it be pronounced. 
 
 J9 *> l95 - Even foreign decrees, whether sustaining a claim or dis- 
 
 missing it, are generally, from a regard to utility, and ex 
 
 cornitatc, received with respect, and held binding, unless 
 
 2 Ersk. 735. 
 
 4 Durnf. 185. there be some very cogent reasons against them, bv the re- 
 
 !92. Sir. 733. , r 11 
 
 2 Kuims, 305. gular tribunal or ail other nations, where the administration 
 
 37f>. 1 Jifnck. r . - 11 i ! j 
 
 Rep. 258.200. * justice is orderly and civilized. 
 
 But the sentence of foreign courts of admiralty, are es- 
 
 pecially received as binding, because they proceed upon 
 
 general principles of the law of nations, applicable to all 
 
 suitors, and of universal extent and reception. As these 
 
 . . courts are all governed by one and the same law, equally 
 
 Doug. 610. 614, 
 
 615. Ci7. 2 known to every country, and equally open to all the world, 
 
 A'aims, S76. 3 . 
 
 Durnj. 330. all persons are, therefore, concluded by their sentences, in 
 cases within their jurisdiction. We find, accordingly, the 
 English courts, as early as the reign of Charles II. regard- 
 ing the decision of the French admiralty in a question of 
 as conclusive upon them, though at that time England 
 
 Hughes v. Cor- IT- i it- 
 
 neiius, Kaims, was a neutral, and France a belligerent power, and the 
 
 473. 2 .S/w.242. . , j v r i i 
 
 Skinn. 59. J u dges observed, that sentences in courts or admiralty ought 
 to bind generally, according to the jus gentium. 
 
 *Lord Holt more than once recognised this law, and gave 
 350 . . 
 
 2 Ld. jRaym. it the sanction or his great name. 
 
 2? See also* i ^ n modern times, when the law of nations .and commer- 
 jf'cwW ' 455^ 2 cia * * aw> ^ ave k een more correctly denned, the doctrine, 
 6
 
 STATE OF NEW- YORK. sso 
 
 that sentences of foreign admiralties were conclusive, has ALRANT. 
 been admitted in the fullest latitude, and the English court 
 of K. B. have repeatedly and unanimously decided, that 
 condemnation in a foreign court of admiralty, of property 
 
 warranted neutral, as enemy's property, was conclusive Bernard; \. 
 
 . . . , . i<- Mrttttix, Doitf. 
 
 evidence against the injured, or a breach or his warranty. 5r5./to-i<7%v. 
 
 These several decisions, while they incoiurovertibly es- sw. be Soum 
 
 tahlish the doctrine, that if no special ground of condem- ***&*"'**** 
 
 nation appears, but the property is condemned generally as . Sa ^" tcci v - 
 
 enemy's property, or as good and lawful prize, other courts 7 '"'*> 362 - 
 
 May ne v. H'iu- 
 
 are bound to consider the decree as decisive evidence, that '<", Park, so:-. 
 
 Fernandez v. 
 
 the property was not neutral ; yet they, at the same time, J>aCosta,Park, 
 
 admit, that if the foreign sentence be so ambiguous as to 
 
 render it difficult to say on what ground the decision turned, 
 
 or if there be colour to presume the admiralty proceeded 
 
 on matter not relevant to the issue, ev idence will be let in / 
 
 to explain. So if a sentence be on the face of it unjust, 
 
 and reasons are given for it, manifestly illegal, and against 
 
 the law of nations, other courts have a right to judge of 
 
 these reasons, and to determine on their validity, and this 
 
 was the amount of the decision of this court in the case of 
 
 Jan. term, 
 
 Smith v. Murray and Mumjord. 1797. 
 
 The English law thus understood and explained, I con- 
 sider as no novel doctrine, but a part of the common law 
 of the land. It is, indeed, the prevailing usage of all 
 countries, whose jurisprudence is enlightened, and whose 
 administration is regular. It could not exist in the civil 
 lazv, because the whole *known world was subject to the * 251 
 
 Roman empire ; but in countries where the civil law has 
 been adopted and modified, the same principle prevails, and 
 a person condemned by a sentence of a foreign court, con- 
 fessedly competent in the case, can have no redress, but 2 K^m*, 366. 
 by a court which has power to reverse the decree. 
 
 The decree of the admiralty of Jamaica cannot be said 
 to be res inter allos acta. The assured, in the present case, 
 was a party to the suit instituted, and the condemnation had 
 there ; he applies here to have the same question agitated
 
 351 
 
 CASES IN ERROR IK, &c. 
 
 ALBANY. 
 
 Ludlow 
 
 there, and which was decided against him, tried anew j the 
 question, whether his property, which he had warranted to 
 be American, had the requisite insignia to entitle it to the 
 privilege of neutrality. 
 
 I shall forbear to give any opinion on the testimony 
 which was produced and commented upon at the argument, 
 because I am of opinion it is totally irrelevant in the present 
 case^ and that the sentence of condemnation being direct, 
 so as to induce a necessary conclusion that neutral or ene- 
 my's property was the point in issue and decided ; and con- 
 taining nothing which appears contrary to the law of nations, 
 is decisive against the plaintiffs, and that judgment ought to 
 be rendered for the defendants.
 
 THE PRINCIPAL MATTERS. 
 
 ABANDONMENT. 
 See INSURANCE, 2. 4. 
 
 ACCOUNT. 
 
 After a judgment, execution and sale under 
 a mortgage-bond, the court will not 2. 
 open the account on the mortgage, 
 though there be some degree of irre- 
 gularity in the accounts, if they appear 
 to be fairly closed. Btoodgood v- Ztiley, 
 
 124 
 
 See MORTGAGE. 
 ACTION. 
 
 See PROMISSORY NOTE, 3. 
 
 ADMIN IS FRATION. 
 
 See SURROGATE. 
 
 ADVERSE POSSESSION. 
 
 JSee SALE. 
 
 AFFIDAVIT. 
 "See DEMUURF.R. PRACTICE, 4- 
 
 AGREEMENT. 
 
 Whether an agreement by a mortgagee, 
 who has bought in the mortgaged pre- 
 mises, to divide with the mortgagor, 
 the surplus produce of a resale, after 
 deducting debt and costs, if he will 
 show the best lands, so as to get for the 
 estate a given sum, be a valid agree- 
 ment, or not ? Query. Bloodgcod v. 
 Zeiley, 124 
 
 And if valid, query, whether the show- 
 ing the lands be not a condition prece- 
 dent ? Ibid. 
 
 APPEAL. 
 See PRACTICE, 2. 
 
 ASSIGNMENT. 
 
 See USURT. 
 
 AVERAGE. 
 
 See INSURANCE, 4. 
 
 B 
 
 BILL. 
 See PRACTICE, 1 4-
 
 354 
 
 INDEX. 
 
 BOTTOMRY. 
 See INSURANCE, 1. 
 
 CASE. 
 See PRACTICE, 3. 
 
 CESTUI QUE TRUST. 
 
 See PURCHASE. 
 
 CHURCHES. 
 See DEVISE. 
 
 COMPUTATION OF VALUE. 
 
 in case lie had, at the date of the co- 
 venant, or should, previous to the suit 
 against the maker, discharge the note ;" 
 if, in an action against the maker, the 
 payee, according to the laws of the 
 country, go into court, and deny autho- 
 rizing the suit by the assignee against 
 the maker, the assignee cannot maintain 
 an action on the covenant against the 
 vendor, if by the law of the country the 
 payee be, in such case, liable for the 
 amount, without first showing a legal 
 endeavour, by suit, to recover the 
 amount against the payee. Covenants 
 are to be construed, not merely by 
 their letter, but their spirit. Betts v. 
 Turner, 305 
 
 See RECOGNISANCE. 
 
 D 
 
 DECREE. 
 
 The rule to compute the value of lands in 
 fact mortgaged, but sold under an idea 
 
 of a defeasible purchase, is the time Set PRACTICE, 2. STATUTE or FRAUDS, 1, 
 when sold, not when redemption asked. 
 Bloodgood v. Zeiley, 124 
 
 On 
 
 See PLEDGE. 
 
 CONDITION PRECEDENT. 
 See AGREEMENT, 1. 
 
 CONSIGNMENT. 
 
 See SURETY. 
 COURTS. 
 
 See FOREIGN COURTS 
 
 COVENANT. 
 
 the sale of a note not negotiable, 
 with a covenant by the vendor, to 
 pay the vendee a certain sum, 
 "if the vendee should take all and 
 every legal step the law directs, to pro- 
 secute to effect the maker and payee, 
 to wit, if the vendee, and no one in his 
 name, or in that of the maker could re- 
 cover judgment legally against the ma- 
 ker, on the note, or against the payee 
 
 DEFEASIBLE PURCHASE. 
 
 See COMPUTATION OF VALUE. MORT- 
 GAGE. 
 
 DEMURRER. 
 
 When a bill requires an affidavit to some 
 parts, and not to others, a demurrer to 
 the whole, for want of 1 hat affidavit, is 
 bad. Laight and others V. Morgan and 
 others, 344. 
 
 DEVISE. 
 
 Our statute of 1784, enabling churches, &c. 
 to incorporate themselves, does not 
 enable them to take lands by devise. 
 Jackson, ex dem. Smith, v. Hammond, 
 
 ssr 
 
 See TENANT AT WILL. 
 
 DISCOVERY. 
 
 A bill for a discovery and injunction to 
 stay proceedings at law, must state 
 some particular matter, which the com
 
 INDEX. 
 
 355 
 
 plainant has a right to seek a discovery 
 of, as material to his defence, and with- 
 out which he canno; proceed to trial. 
 A mere inquiry, because the grounds 
 of the suit at law are unknown, cannot 
 be maintained, being a fishing bill. 
 Newtek and wife v. Witlett, 25 6 
 
 no inference to be made against them. 
 Smith v. Williams t *^ 
 
 See INSURANCE, 3. 
 
 FOREIGN SENTENCES. 
 
 See INSURANCE, 3. 
 
 EJECTMENT. 
 See TENANT AT WILL. 
 
 EQUITY. 
 flee PRACTICE, 1. 
 
 EVIDENCE. 
 
 See FOREIGN COURTS. 
 
 EXECUTOR. 
 See PLEDGE. PURCHASE. 
 
 FACTOR. 
 
 On a sale by the known factor of a house, 
 the principal may immediately maintain 
 an action against the vendee. Factors 
 in Mew-York may, by custom, sell on a 
 credit, at the risk of their principal. 
 Urmane and others V. Robinson and Harty 
 home, 341 
 
 See SET-OFF. ( 
 
 FISHING BILL. 
 
 Sec DISCOVERY. 
 
 FOREIGN COURTS. 
 
 Judicial acts of foreign tribunals are prima 
 facie to be deemed correct ; therefore, 
 
 G 
 
 GIFT. 
 
 parol gift of lands creates only a tenancy 
 at will, by the statute of frauds, jfoci- 
 son t ex dem. Jane Van Alen,\-jRogers, 314 
 
 H 
 
 HEARING CAUSES. 
 See PRACTICE, 3- 
 
 HOLIDAY. 
 
 See PROMISSORY NOTE, 1- 
 HOMINE REPLEGIANDO. 
 
 Sec RECOGNISANCE. 
 
 I 
 
 IMPROVEMENT. 
 See STATUTE OF FRAUDS, 1. 
 
 INCIDENT. 
 See WATER. 
 
 INFERENCE. 
 
 Vfff FOREIGN COURTI.
 
 356 
 
 INDEX 
 
 INJUNCTION. 
 
 See moMissoRY NOTE, 2- DISCOVEUY. 
 
 JOINT-TENANTS. 
 
 See TENANTS IN COMMON 
 
 INSOLVENT. 
 
 If the endorser of a note pay it after the 
 discharge of the insolvent maker, under 
 the insolvent law, the discharge is no 
 bar to a subsequent recovery against 
 the maker. Frost v. Carter, 311 
 
 INTEREST. 
 See INSURANCE, 1- 
 
 INTERLOCUTORY ORDER. 
 See PRACTICE, 2. 
 
 INSURANCE. 
 
 1- An owner of a ship bottomed for more 
 
 than her value, has not an insurable in- 
 terest in her. Smith v. William*, 
 
 110 
 
 2- To constitute a technical total loss of a 
 
 ship, by damage from the perils insu- 
 red against, she must be injured 
 to the amount of half her value or 
 more, after deducting the one-third, 
 new for old, allowed the underwriter ; 
 that is, she must be injured to the ex- 
 tent of three -fourths of her value or 
 more, to warrant an abandonment on 
 account of deterioration. Smith v. Self, 
 Bell and Watson, ' 153 
 
 3. In an action on a policy of insurance, 
 the sentence of a foreign court of ad- 
 miralty is not conclusive on the charac- 
 ter of the property, in opposition to the 
 warranty. Vandenheuvel v. The United 
 Insurance Company, 217 
 
 4. Under a policy on# chariot "free from 
 average," but in which jettisons make 
 one of the perils insured against, if the 
 box of the chariot be thrown overboard 
 in a storm, it is a total loss, and the in- 
 sured entitled, on abandoning, to reco- 
 ver as for such, though the carriage 
 be on deck. Judah v. Randal, 324 
 
 JETTISON. 
 
 ISX INSURANCE, 4. 
 
 LANDS. 
 
 See GIFTS. 
 
 LEASE. 
 
 Sfe TENANT AT WILL. 
 
 M 
 
 MANDAMUS. 
 See SESSIONS. 
 
 MERITS. 
 See SESSIONS. 
 
 MILLS. 
 See WATER. 
 
 MORTGAGE. 
 
 If, after a mortgage be forfeited, and exe- 
 cution sued out on a judgment recover- 
 ed on the bond accompanying it, a con- 
 veyance, to secure a portion of the 
 mortgage money, be made of other 
 property, redeemable on paying a cer- 
 tain sum at a future day, such convey- 
 ance will partake of the quality of the 
 original transaction, and be deemed a 
 mortgage, and not a defeasible pur- 
 chase ; therefore, if after lapse of the 
 day for repayment, the lands so con- 
 veyed be sold to a bona fide purchaser, 
 though the purchase will not be im- 
 peached, the grantor will be entitled 
 to an account, and the sum at which 
 the land was sold, with interest, will 
 be the amount for which he will be en- 
 titled to credit, though he did not de- 
 mand a redemption, for more than six
 
 years after the day of repayment. 
 'loot/good v- Zeiley, 124 
 
 ACCOUNT. AGREEMENT, 1. COM- 
 PUTATION OF VALUE. PLEDGE. 
 USURY. 
 
 N 
 
 NEW FOR OLD. 
 See INSURANCE, 2. 
 
 NEW TRIAL. 
 See SESSIONS. 
 
 NOTICE. 
 
 INDEX. 357 
 
 PERFORMANCE. 
 See PURCHASE. STATUTE OF FRAUDS, 1. 
 
 PLEDGE. 
 
 On the deposit of a pledge, when no day of 
 redemption is limited, the right of re- 
 demption descends to the personal re- 
 presentatives of the pawnor. If the 
 pawnee sell the pledge before applica- 
 tion to redeem, and without demanding 
 payment, he is answerable for the value 
 of the pledge at the time application to 
 redeem is made, and it is not in such 
 case necessary to make an actual ten- 
 der of the balance that at the time of 
 such sale might have been due. Cor- 
 tclyou v. Lansing, 200 
 
 A conveyance with a recital of the intent 
 of a purchase, is a conveyance with no- 
 tice, and .he grantee takes subject to 
 trusts implied as well as expressed. 
 Cuyler and others v. Bradt and others, 
 
 326 
 
 NOTICE TO QUJT. 
 
 *e TENANT AT WILL. 
 
 o 
 
 ORDER. 
 See PRACTICE, 2. 
 
 PRACTICE. 
 
 J. \Vhere relief at law is doubtful, equity 
 will retain the bill. Ludlovo & Ludlva 
 v. Simond, 1 
 
 2. If a cause come before this court on 
 appeal, from an interlocutory order, 
 and the whole merits of the case ap- 
 pear, the court will make a final decree 
 and direct the chancellor to carry it in- 
 to effect. Bush v. Jjvingtton & Tonn- 
 send, 66 
 
 3. A cause cannot be set down for hearing 
 till cases are delivered. Hallett & 
 hovine v. Jenks, 86 
 
 4. Where a bill seeks an examination of 
 witnesses de bene esse, on account of 
 age, fcc. an affidavit of the facts on 
 which the application is founded, is ne- 
 cessary. So on a bill to have a title 
 established, and for quiet |M>ssession . 
 for whenever a bill seeks to transfer a 
 matter cognisable by law, to chancery, 
 an affidavit of the facts on which it is 
 required, should be stated. Laight and 
 other* v. Morgan and others, 344 
 
 See DISCOVERY. 
 
 PATENT. 
 
 TENANTS IN COMMON. 
 
 PRESUMPTION. 
 See PROMISSORY NOTE, 2. 
 
 PAYMENT. 
 See STATUTE or FRAUDS, 1. 
 
 PRINCIPAL. 
 See FACTOR. SURETY-
 
 35B INDEX. 
 
 PROMISSORY NOTE. RECOGNISANCE. 
 
 1. A promissory note falling due in Ncvi- If a recognisance in a homine reple&ando be, 
 Tort on the 4th of July, is payable that the slave claimed should prove his 
 the 3d, the 4th being by custom a pub- liberty, and personally appear in court, 
 he holiday in that place. Lewis v Burr, and prosecute his suit with effect, it is 
 
 195 forfeited b, the appearance and sur- 
 
 2. When a note is purchased after due, render of the slave to the person rlaim- 
 every presumption is to be made ing, notwithstanding he- be on such sur- 
 agamst the purchaser. Therefore, if render accepted. C&oenhoven v. Seaman 
 he state it to have been generally in and others, 322 
 such a year, and the maker has assign- 
 ed his property under the insolvent 
 
 law, on the 16th of January in that REDEMPTION. 
 
 year, it shall be presumed the purchase 
 
 was after the assignment. A note pur- . 
 
 chased after due, and after an assign- 6ee COMPUTATION OF VALUE. MORT- 
 
 ment under the insolvent law, cannot, GAGE. PLEDGE. 
 
 in an action by the assignees, in the 
 
 name of the insolvent, be set off against 
 
 a debt due to the insolvent's estate. RELATION. 
 
 Johnson v. Bloodgood, 303 
 
 3. An action is maintainable in our courts See SALE. 
 on a promissory note within our statute 
 
 by the holder, though made in Connecti- 
 cut, where the suit must be in the name RELEASE, 
 of the original payee. Lodge v. Phelps, 
 
 001 
 
 See. SURETY. WATER. 
 See INSOLVENT. COVENANT. 
 
 RELIEF. 
 PURCHASE. 
 
 See PRACTICE, 1. 
 
 If an executor has a power to sell for the be- 
 nefit of a third person, a purchase by 
 him from his cestui que trust is not fa- 
 Toured in equity, and a bill by him for C 
 a specific performance cannot be main- 
 tained ; but it seems that a purchase 
 by a trustee, who is also a cestui que 
 
 trust, may, if to save the property from SALE, 
 
 loss, be sustained. Munro v. Jlllaire, 183 
 
 If a bargain for the purchase of land be 
 
 See MORTGAGE. PROMISSORY NOTE, 2. concluded, and at the expiration of 
 
 SALE. some time, the conveyances duly exe- 
 
 cuted, the subsequent deeds will so far 
 have relation to the day of concluding 
 the bargain, that an intermediate sale 
 
 J^ by the vendee, will be good against 
 
 him and his privies, and the possession 
 of the original vendor cannot be urged 
 
 RATIFICATION. as a possession adverse to the vendee, 
 
 and therefore, that nothing passed by 
 
 Sec TENANT AT WILL- his **?*' ><^"> *"*' L . ffi; 
 
 cers of Rensselaer ana Crabb, v. Bull, 301 
 
 RECITAL. See COMPUTATION OF VALUE. MORT- 
 
 GAGE. PURCHASE. STATUTE OF 
 See NOTICE. FRAUDS, 2- SVRETY. 
 
 4
 
 INDEX. 359 
 
 SESSIONS. SURROGATE. 
 
 The sessions cannot grant a new trial on The Surrogate has a diseretionarv power to 
 the merits ; if they do, a maadamvt elect out of those of the next of kin of 
 
 vriB go, Forbidding' them to proceed. the intestate, any one in an equal !. 
 
 The People v. Sessions of Chenango, 319 g ree> and grant to such person the ad. 
 
 ministration. Wild am tf George Taylor 
 SETTING DOWN CAUSES. Vi I)e!arre )'> 
 
 See PRACTICE, 3. 
 
 T 
 
 SET-OFF. 
 
 TENANTS IN COMMON. 
 Where goods are sold by the known factor 
 
 of a house, a set-oft cannot be made .... 
 
 against them by the purchaser, for a " here seve [ patentees bear in equal pro, 
 
 debt due from the factor in his own portions the expense c.f obtaining a pa- 
 
 right, if the goods be actually those of tent ' *" b ^ the rccital ot a , (lce<l 
 
 the principal, though the factor do car- amo , n S themselves, it appears they in- 
 
 rv on business for himself, and nothing te ";'f cl to , Pl'ase >" common, they 
 
 be said at the time of sale, respecting Wl \ l be t:ik . ei ? as tenants in common, 
 
 the ownership of the goods. Browne aml nn * as jomt-tenants, ; though the pa- 
 
 andothenv.Bolinson&ffartshorne.Ul lent be to them jo.ntly. Cuyler and 
 
 others v. Jttraat and others, 326 
 
 See PROMISSORY NOTE, 2. 
 
 TENANT AT WILL. 
 
 SPECIFIC PERFORMANCE. 
 
 If a tenant at Will lease lands, the mere per- 
 mitting the lessee to build and enjov 
 
 SU PURCHASE. STATUTE OF FRAUDS, 1. umler tne tcnilt ig not a ratification oY 
 
 the lease by the owner of the land, nor 
 
 will it prevent him from legally devi- 
 
 STATUTE C FRAUDS. sm ^ j t> a ,,,j |,; s ( i cv j sec m: iy recover in 
 
 ejectment without notice to quit. yac- 
 
 1. Payment of consideration-money, pos- sen, ex dem. "June Van Alcn, v. Rogers, 
 session, and making improvements, 314 
 take a case out of the statute of frauds, 
 
 and will entitle to a decree for a spe- $ ee CITT . 
 
 cific performance. Wet more v. While 
 & White, 87 
 
 2. A sale by loan officers is within the TOTAL LOSS, 
 statute of frauds Jactson, ex dein.. 
 
 the Loan Officers of Jtcr.sselaer and ,$. e INSURANCE, 2. 4. 
 
 'John Crabb, \. Bull, 301 
 
 See GIFT. TRUSTEE. 
 
 See PUKCHAS-. 
 SURETY. 
 
 If a surety engage to make good the defi- H 
 
 ciency arising from a sale of ^MM'.S at 
 a given place, and consigned to the 
 person to whom the security is givt-n, 
 who has the v, hole control of the ad- 
 venture, a saic by the consignee at 
 
 another place, releases the surety. Lvd- A security made on a good and *TW *fc 
 low & Ludb v. fiiii' " <nnot be ' '''
 
 360 
 
 INDEX. 
 
 account of a usurious transfer ; there- 
 fore, where a mortgage is ass gned to 
 a third person, who pays what is due 
 on it to the mortgagee, the mortgagor 
 cannot avoid it in the hasds of that 
 third person, on account of an agree- 
 ment to repay him a sum exceeding the 
 money paid and legal interest, but such 
 excess will be denied, and only the 
 money actually paid and lawful interest 
 allowed. Bush v. Livingston and Toiun- 
 tend, 66 
 
 V 
 
 VALUE. 
 See COMPUTATION OF VALVE. 
 
 w 
 
 WARRANTY. 
 See INSURANCE, 3. 
 
 WATKR. 
 
 The water of a raceway of a mill, will, on 
 a sale of the mill, pass as an incident. 
 If the water in a stream be owned by 
 two persons, whose lands are on oppo- 
 site sides, and they agree to erect mills 
 on the land of one, and turn the whole 
 stream to the mills, it is an appropria- 
 tion of the water to the mills, and if 
 they be held jointly or in common, a re- 
 lease of the right of one tenant in the 
 mills, wijl pass his right in the water 
 also- Wetmore v. White & White, 87 
 
 WITNESS. 
 See PRACTICE, 1. 
 
 THE END.
 
 UCSB L1BKAKI
 
 A 000616887 e